By Adv (CA) Dr. Arpit Haldia
At times it is seen that taxpayer are receiving notices issued solely under the provisions of Section 47 for recovery of late fees for delayed filing returns.
This post does not goes into the aspect that whether Section 73 empowers for collection of late fees or not (since it only speaks about tax, interest and penalty) or why system did not collect the late fees.
This post only seeks to discuss the issue that can a notice under Section 47 be issued for recovery of late fees for delayed filing of GSTR-1.
It would be apt to highlight at the outset that wherever the statute stipulates that an officer shall exercise the power under a provision, it uses the term “proper officer” in the specified provision, and at all such places in such provisions, Circular No. 3/3/2017 Dated 5th July 2017 assigns that power to an officer under the statute.
Unlike the provisions of Section 73/74, Section 47 are not the provisions of determination and recovery under the Statute. Also when we go through the provisions of Section 47, it does not empower a proper officer to determine and recover late fees, therefore Circular No. 3/3/2017 Dated 5th July 2017 also does not assign that power of determination and recovery of late fees to any of the officer in the statute.
Thus, when provisions of Section 47 do not entrust the power to determine and recover late fees to a proper officer and thus no proper officer has been assigned the power under Section 47 by Circular No. 3/3/2017 Dated 5th July 2017, any consequential proceedings under the said provision for recovery of late fees by issuance of notice is illegal and ultra vies to the statute.
Therefore, no notice can be solely issued under the provisions of Section 47 for the recovery of late fees.
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