Page 207 - GSTL_2nd July 2020 _Vol 38_Part 1

2020 ] IN RE : OMSAI PROFESSIONAL DETECTIVE AND SECURITY SERVICES PVT. LTD. 125
(c) FORM GSTR-3 - As per Section 39 of the CGST Act, 2017, read
with Rule 61 of the CGST Rules, 2017, a person has to file a re-
turn in FORM GSTR-3 mentioning details of inward and out-
ward supplies of goods and services mentioning details about
input tax credit availed, tax payable and tax paid on or before
the 20th day of the month succeeding the tax period.
(4) Due to the difficulty in the implementation of GST, returns which
were designed to be implemented as per the scheme explained su-
pra were not implemented by the Government and a new form
called FORM GSTR-3B was prescribed in lieu of return in FORM
GSTR-3 under Rule 61(5) of the CGST Rules, 2017. The extract of the
rule is given below :
“Where the time limit for furnishing of details in FORM
GSTR-1 under Section 37 and in FORM GSTR-2 under Section
38 has been extended and the circumstances so warrant, return
in FORM GSTR-3B, in lieu of FORM GSTR-3. may be furnished
in such manner and subject to such conditions as may be noti-
fied by the Commissioner.”
(5) From the above, it can be substantiated that FORM GSTR-3B can be
considered as a return filed in lieu of FORM GSTR-3 and according-
ly it can be said that FORM GSTR-3B is a return filed under Section
39 of the CGST Act, 2017.
(6) However, subsequently, the aforesaid sub-rule was amended vide
Notification No. 17/2017-Central Tax, dated 27-7-2017 w.e.f. 1-7-
2017 by way substitution. The substituted sub-rule reads as under :
“Where the time limit for furnishing of details in FORM
GSTR-1 under Section 37 and in FORM GSTR-2 under Section
38 has been extended and the circumstances so warrant, the
Commissioner may, by notification, specify the manner and
conditions subject to which the return shall be furnished in
FORM GSTR-3B electronically through the common portal,
either directly or through a Facilitation Centre notified by the
Commissioner.”
(7) Thus, from the above retrospective amendment (i.e. w.e.f. 1-7-2017),
it can be construed that FORM GSTR-3B is a return which will be
notified by the Commissioner of GST and it has no nexus with
FORM GSTR-3 the way it had before this amendment and accord-
ingly, it can be construed that FORM GSTR-3B is not a return pre-
scribed under Section 39 of CGST Act, 2017 as the very foundation
of the parity clause between two returns has been am ended so as to
partake either of the returns colour in isolation.
(8) Also the fact that Rule 61(1) states, “Every registered person other
than a person referred to in Section 14 ………. shall furnish a return
specified under sub-section (1) of section 39 in FORM-GSTR-3 elec-
tronically……….”. Thereby drawing no relevance to GSTR-3B with
GSTR-3 and leaving no room for doubt regarding the distinct identi-
ty of both the returns. In other words, the GSTR-3 and GSTR-3B are
two different returns while the GSTR-3 is return prescribed under
Section 39, ibid read with Rule 61(1) of CGST Rules, 2017 and the
GSTR-3B is not so.
(9) Appellant submits that undisputedly the filing of the GSTR-3 is deferred
now vide Notification No. 12/2019, dated 7-3-2019 consequently the juris-
GST LAW TIMES  2nd July 2020  207