UNION OF INDIA versus BHARTI AIRTEL LTD. & ORS.

Citation: [2021] 10 S.C.R. 825 · Decided: 28-10-2021 · Supreme Court of India · Bench: A.M. KHANWILKAR · Disposal: Appeal(s) allowed

Judgment (excerpt)

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[2021] 10 S.C.R. 825
825
UNION OF INDIA
v.
BHARTI AIRTEL LTD. & ORS.
(Civil Appeal No. 6520 of 2021)
OCTOBER 28, 2021
[A.M. KHANWILKAR AND DINESH MAHESHWARI, JJ.]
Central Goods and Services Tax Act, 2017 – ss. 16, 39, 49,
59 and 168 – Central Goods and Services Tax Rules, 2017 –
Circular dated 29.12.2017 issued by the Commissioner (GST) –
Validity of – Act of 2017 and Rules of 2017 brought into force along
with Forms GSTR-1, GSTR-2, GSTR-2A, GSTR-3 and GSTR-3B –
Various notifications were issued – In exercise of the powers
conferred by Rule 61(5) of the stated Rules, the Central Government
issued Notification No.21/2017-Central Tax specifying that the return
for the months of July and August 2017 to be furnished in Form
GSTR-3B electronically through the common portal before the dates
as specified in the corresponding entry in column (3) of the table
given therein – Thereafter again various notifications/circulars were
regarding extension of time (notification dated 17.08.2017), relating
to system-based reconciliation of information furnished in Forms
GSTR-1, GSTR-2 and GSTR-3B and the mechanism for correction
of erroneous details furnished in Form GSTR-3B, specifying the
timeline for filing of return in Form GSTR-3B (circular dated
01.09.2017) etc. were issued – The Commissioner (GST) then issued
the circular dated 29.12.2017, on the subject of filing of returns
under GST, clarifying certain issues considered by the Central Board
of Indirect Taxes and Customs to usher in uniformity in
implementation across field formations – By this Circular, the earlier
Circular issued on 01.09.2017 was kept in abeyance – Paragraph
4 of the Circular dated 29.12.2017 specifies “...It may be noted
that while making adjustment in the output tax liability or input tax
credit, there can be no negative entries in the FORM GSTR-3B –
The amount remaining for adjustment, if any, may be adjusted in
the return(s) in FORM GSTR-3B of subsequent month(s) and, in
cases where such adjustment is not feasible, refund may be
claimed...” – Respondent No. 1 was, however, keen on availing of
the dispensation specified in the Circular dated 01.09.2017 for the
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SUPREME COURT REPORTS
[2021] 10 S.C.R.
relevant period (July to September 2017) – After Form GSTR-2A
became operational in September 2018, respondent No. 1 realized
that it had sufficient amount in the ITC ledger account (electronic
credit ledger) during the relevant period – Further, due to non-
functionality of GSTR-2A, respondent No. 1 had to discharge its
OTL by depositing/paying in cash – Respondent No.1 urged to rectify
Form GSTR-3B – However, the impugned Circular dated 29.12.2017
came in the way of respondent No. 1 in doing so – Resultantly,
respondent No.1 approached the High Court by way of writ petition
– High Court allowed the writ petition and read down paragraph 4
of circular dated 29.12.2017 to the extent it restricted the
rectification of Form GSTR-3B in respect of period in which the
error had occurred – Before the Supreme Court respondent no. 1
contended that the circular dated 29.12.2017 was issued without
any authority of law – Held: The decision was taken by the Board
after considering various representations received seeking
clarifications on various aspects of return filing such as return filing
dates, applicability of quantum of late fee, amendment of errors in
submitting/filing of Form GSTR-3B and other related queries – In
strict sense, it is not the direction issued by the Commissioner (GST)
as such, but it is notifying the decision(s) of the Board taken in
exercise of its powers conferred u/s. 168(1) of the 2017 Act – The
circular was issued under the signatures of Commissioner (GST),
but in essence, it was notifying the decision(s) of the Board, which
has authority and power to issue directions – The stipulations in
the stated circular including paragraph 4 are consistent with the
provisions of the 2017 Act and the Rules – The express provision in
the form of s. 39(9) clearly posits that omission or incorrect
particulars furnished in the return in Form GSTR-3B can be corrected
in the return to be furnished in the month or quarter during which
such omission or incorrect particulars are noticed – Accordingly,
the argument that the impugned Circular dated 29.12.2017 was
issued without authority of law is rejected.
Central Goods and Services Tax Act, 2017 – ss. 16, 39, 49
and 59 – Central Goods and Services Tax Rules, 2017 – rr. 59, 60

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