The Ministry of Finance has announced a GST amnesty scheme u/s 128A with effect from 01.11.2024 based on the recommendations made by the GST council in its 53rd meeting for waiver of interest or penalty or both for demands u/s 73 for FY 2017-18 to FY 2019-20. The procedure and eligibility for the GST amnesty scheme for such waiver has been explained comprehensively in the circular issued on 15th October, 2024 (Circular No. 238/32/2024-GST) and by insertion of Rule 164 in the CGST Rules, 2017. Let us understand the eligibility, procedure, forms and timelines pertaining to availing the benefits under this GST amnesty Scheme.
Section 128A and GST forms
Section 128A has an overriding effect on all the other provisions of the GST law. Section 128A provides waiver of interest or penalty or both for demands u/s 73 other than on account of erroneous refund only and for the time period of FY 2017-18 to FY 2019-20 in the following cases :-
| Where a notice has been issued u/s 73(1) or a statement has been issued u/s 73(3), but no order has been issued u/s 73(9) | Application in FORM GST SPL – 01 |
| Where an order has been issued u/s 73(9) but no order has been issued by the Appellate Authority/Revisional Authority u/s 107(11) or 108(1) | Application in FORM GST SPL – 02 |
| Where an order has been issued by the Appellate Authority/Revisional Authority u/s 107(11) or 108(1) but no order has been passed by the Appellate Tribunal u/s 113(1) | Application in FORM GST SPL – 02 |
| Where a notice that was initially issued u/s 74 for FY 2017-18, 2018-19, and 2019-20 and an order is passed or required to be passed u/s 73 as per the directions to the proper officer by the Appellate Authority or Appellate Tribunal or a court in accordance with the provisions of Section 75(2) | Application in FORM GST SPL – 02 |
In case of multiple notices issued to the taxpayer, they will have to file a separate application in Form GST SPL -01 or Form GST SPL – 02 in respect of each notice/statement/order.
GST Amnesty Scheme – Timelines
As per Notification No. 21/2024 – Central Tax dated 8th October, 2024, 31.03.2025 has been notified as the date on or before which the full payment of the tax as per the notice or order needs to be made by the taxpayer for availing the benefits of such waiver of interest or penalty or both.
Withdrawal of appeals before availing this scheme
Before filing an application in Form GST SPL -01 or Form GST SPL – 02, the taxpayer is required to withdraw any appeal u/s 107 or 112, or any writ petitions against the notice/statement/order relating to the issues for which the taxpayer is applying u/s 128A. The taxpayer will have to submit a copy of the order of the withdrawal along with the application filed under Form GST SPL -01 or Form GST SPL – 02.
If the application for such withdrawal is still pending with the authorities, the taxpayer can file a copy of such application for withdrawal alongwith Form GST SPL -01 or Form GST SPL – 02. However, the taxpayer will have to upload the order for withdrawal within 1 month from the date of its issuance.
Payment of Tax
Case I – Where a notice has been issued u/s 73(1) or a statement has been issued u/s 73(3), but no order has been issued u/s 73(9) and the taxpayer wishes to avail the benefit of this GST amnesty scheme
Payment of Tax – The payment of tax demanded shall be made through Form GST DRC – 03.
Case II – Where an order has been issued by the Appellate Authority/Revisional Authority u/s 107(11) or 108(1) but no order has been passed by the Appellate Tribunal u/s 113(1) OR where an order has been issued by the Appellate Authority/Revisional Authority u/s 107(11) or 108(1) but no order has been passed by the Appellate Tribunal u/s 113(1) and the taxpayer wishes to avail the benefit of this GST amnesty scheme
Payment of Tax – The payment of tax demanded shall be made only by making the payment against the debit entry created in the Part II of the Electronic Liability Register (ELR) by the demand order. However, if the taxpayer has already made the payment of such tax via Form GST DRC – 03, he shall be required to file Form GST DRC – 03A for adjustment of the demand created in the ELR Part – II before filing any application u/s 128A.
In both these cases, the full payment of the tax as per the notice or order needs to be made by the taxpayer on or before 31.03.2025 for availing the benefits of such waiver of interest or penalty or both. Even of such amount of paid before Section 128A came into effect, it shall be considered if it was intended to be paid towards the said demand.
Acceptance of application
The proper officer shall issue an order under Form GST SPL – 05 accepting the application for such waiver. Where no order of acceptance is passed by the officer within the time limit as Rule 164(13) of the date of filing such application, the application shall be deemed to be approved and subsequently Form GST SPL – 05 shall be made available on the portal.
Rejection of application
If on examination of the Form GST SPL -01 or Form GST SPL – 02, the proper officer finds that the application is liable to be rejected, he shall issue a notice within 3 months from the date of such application to the taxpayer in Form GST SPL – 03 alongwith an opportunity of being heard.
The taxpayer can then file his reply in Form GST SPL – 04 on the portal within 1 month from the date of receipt of such rejection notice.
However, if on receipt of reply in Form GST SPL – 04, the proper officer is of the view that the applicant is not eligible for such waiver, he shall issue an order under Form GST SPL – 07 rejecting the application.
Appeals against orders issued under Rule 164
- Appeals cannot be filed u/s 107 for orders issued in Form GST SPL – 05 concluding the proceedings u/s 128A.
- Appeal can be filed u/ 107(1) against orders of rejection filed in Form GST SPL – 07 by filing an application in Form GST APL – 01.
- Since the tax amount would have already been deposited while filing an application under Form GST SPL -01 or Form GST SPL – 02, there is no requirement of any pre-deposit. However, where the tax paid is less than the pre-deposit requirement, the differential will have to be deposited.
- On filing of an appeal against Form GST SPL – 07, where the appellate authority has holds that it was wrongly rejected and that the benefit of the waiver must be given to the taxpayer, an order in Form GST SPL – 06 will be passed. No appeal shall be allowed against an order in Form GST SPL – 06.
- It is pertinent to understand that the appeal will be regarding the applicability of the waiver of interest or penalty or both and not on the merits of the original notice/statement/order.
Conditions where original appeals will be restored
The pre-requisite for availing the benefit of the waiver of interest or penalty or both, taxpayer will have to withdraw his appeals against such orders as mentioned in detail above. However, in the following 2 circumstances the original appeal filed by the taxpayer will be restored:-
- Where an application under Form GST SPL -01 or Form GST SPL – 02 has been rejected by the appellate authority in Form GST APL -04, the original appeal filed by the taxpayer will be restored if he files an undertaking in Form GST APL – 08 that he is not filing any appeal against the order of the appellate authority.
- Where the taxpayer has not filed an appeal as per the time limit of Section 107(1) against the rejection order, the original appeal filed by the taxpayer will be restored.
To know more about the GST Amnesty Scheme of 2023, click here.