Waiver of Penalty Under GST Laws: Building a Case for the Taxpayers

July 1, 2017 marked a watershed moment in the space of indirect tax laws in India. Decades old regime governing levy of such taxes was replaced by a new harmonised levy — Goods and Services Tax (GST). The run-up to GST was long drawn and resulted into unprecedented changes in the constitutional scheme which witnessed a marked departure in the manner in which indirect tax laws were implemented. The enormity of changes, however, were not matched by sufficient lead time for its introduction — the GST laws having received presidential asset on 12-4-2017 i.e. with less than three months for both the taxpayers and the tax administration to shift to the new regime. Even after its introduction, the state of affairs were in a constant flux with frequent revisits even to tax policy and tax laws besides the constant changes to tax compliance mechanisms. To illustrate, the issues with the transition of pre-GST input tax credit in the GST laws — which was a one-time exercise to be completed in 2017 itself — could be addressed only in the latter half of 2022, that too after the intervention of the Supreme Court.¹ Even today, notwithstanding the overwhelming number of changes introduced in the GST laws and compliances, the regime continues to be a work in progress. In fact, with the audits and assessments having finally coming to fruition, the deadlines have been extended owing to Covid-19 protocols, etc. A large number of issues continue to frequently arise, many of which relate back to day one of GST law implementation. In this background, a question arises, whether it is appropriate to saddle the taxpayers with high-pitched penalties owing to defaults, particularly during the initial days of introduction of GST.

The GST laws enact various species of penalties.² Some of them require deliberate non-compliance and carry mens rea as an essential condition for their levy. However, a large number of penalties are essentially in the nature of “strict liability” which trigger automatically upon default. In fact, the provision for recovery of tax mandates the tax officer to confirm a penalty pegged as a proportion of the tax liability.³ It is also essential to highlight that these penalties are in addition to “late fee”⁴ and “interest”⁵ which are levied under the GST law for delayed compliance.

Technically one cannot quarrel with the presence of such provisions in the law. The jurisprudence of the Supreme Court reveals that such kind of strict liability penalisation is permitted in tax law because these are in the nature of civil offences the purpose of which is to generate compliance with the tax law.⁶ However, a question does arise on the propriety of such penal provisions in the GST laws. One cannot ignore the state of flux which prevailed in the initial years of GST, laws were frequently amended, tax compliances were regularly changed and deferred, large number of advance rulings which were issued with varying divergences, many of which had to be administratively quelled with binding instructions of the Central Board of Indirect Taxes and Customs (CBIC), frequent judicial interjections resulted in change of course, etc. Furthermore, owing to extended timelines, the taxpayer audits could not proceed on time which resulted in delayed detection of issues, to the peril of the taxpayer in the form of interest obligation for the delayed course correction, etc. Thus, the taxpayers have already suffered enough, a compelling case against penalty further adding to the agony.

Indeed, one is wiser in hindsight. Hence, a review of the taxpayers’ affairs of 2017, 2018, 2019, etc. in 2024 is bound to reveal incongruities. However, the question is whether such deviations should be further “punished” with the imposition of penalties. Instead, is this not a reason in itself sufficient to introduce a waiver of penalty for the initial years of GST? There is sufficient judicial support to the proposition in the space of tax laws that penalty should not be imposed for procedural infractions or minor non-compliances. The decision of Hindustan Steel Ltd. v. State of Orissa⁷ is instructive in this respect insofar as it inter alia observes as under:

8. Under the Act penalty may be imposed for failure to register as a dealer: Section 9(1) read with Section 25(1)(a) of the Act. But the liability to pay penalty does not arise merely upon proof of default in registering as a dealer. An order imposing penalty for failure to carry out a statutory obligation is the result of a quasi-criminal proceeding, and penalty will not ordinarily be imposed unless the party obliged either acted deliberately in defiance of law or was guilty of conduct contumacious or dishonest, or acted in conscious disregard of its obligation. Penalty will not also be imposed merely because it is lawful to do so. Whether penalty should be imposed for failure to perform a statutory obligation is a matter of discretion of the authority to be exercised judicially and on a consideration of all the relevant circumstances. Even if a minimum penalty is prescribed, the authority competent to impose the penalty will be justified in refusing to impose penalty, when there is a technical or venial breach of the provisions of the Act or where the breach flows from a bona fide belief that the offender is not liable to act in the manner prescribed by the statute. Those in charge of the affairs of the company in failing to register the company as a dealer acted in the honest and genuine belief that the company was not a dealer. Granting that they erred, no case for imposing penalty was made out.

A quick review of tax jurisprudence further reveal that the courts have regularly exonerated the taxpayers from compliance of the tax laws when substantive compliance and the dispute is limited to procedural violations.⁸ In such situation, one in which the tax law itself is relaxed, is it not an obvious conclusion for non-imposition of penalty?

Similarly, there have been many interpretational issues in the fine print of GST laws, which is obvious given that both the policymakers and the taxpayers were up for a fresh start in the GST regime. Besides the judicial resolution of such issues, in fact, many times the GST Council itself has reversed its conclusions and consequently administrative clarifications have been issued and, in some cases, even the GST laws have been amended. Such situations point out to the existence of serious interpretative issues in the GST laws, which in itself should be a sufficient fact to declare non-application of penalty provisions. The fiscal jurisprudence supports this proposition.⁹

Even if there was no change in the policy or the law, one cannot always find fault with the taxpayer many of whom continued to harbour the notion, particularly in view of certain provisions of GST laws which mirrored the pre-GST laws, that the legal principles under the pre-GST laws would continue to apply even in the GST regime. Additionally, there are many taxpayers who have, either on account of judicial precedents, or based on legal advice, maintained a particular tax position, which have been subsequently challenged by the tax administration. In a variety of such situations, there exists genuine reasons for the taxpayers to carry a bona fide belief on their tax position. In such cases, levy of penalty is judicially suspect, the prevailing view being a consistent rejection of penalty in such bona fide belief scenarios.¹⁰

It is true that judicial precedents exist which may save the taxpayer from the scourge of penalty in many of the situations of non-compliance or delayed compliance. However, the larger question is whether it is just to the cause of the taxpayers that they should be forced to avail judicial remedies in order to save penalty. The answer is a clear no for many reasons, such as:

(i) First, it is a well-known fact that judicial remedies take time. Hence, having to contest penalty is prolonging the misery for the taxpayer.

(ii) Second, pursuing a judicial contest is costly, particularly when the relief is not ordinarily available at the first level of adjudication or even at the first appeal level, which forums are generally manned by serving departmental officers who have little discretion to deviate from the official government position.

(iii) Third, judicial remedy is not an effective solution from a cost-benefit analysis in a majority of cases either on account of their quantum or due to lack of robust documentary evidence to demonstrate bona fide conduct, etc.

From a different perspective, by mandating levy of penalty in such cases the tax policy is only forcing further explosion of judicial dockets as a large number of self-respecting and genuine taxpayers are expected to challenge their penalisation in judicial forums. One can clearly envision the massive waste of judicial time on account of such non-recurring, fact-based disputes, besides the fact that government resources would be equally stretched while defending such penalty orders.

One must not be confused that the purpose of this article is to argue for an indiscriminate waiver for all taxpayers. It is now well documented that unscrupulous elements exploited the confusion to nefarious ends which resulted in substantial loss to exchequer and honest taxpayers in equal measure. Such cases should indeed be dealt with sternly. However, addressing the few outliers who abuse the system should not be the basis to deny leniency where it is genuinely warranted.

On this count, it is intriguing to note that in the service tax law, which predated GST, there was in fact a statutory provision which carried a non obstante clause to mandate that “no penalty shall be imposable on the assessee for any failure… if the assessee proves that there was reasonable cause for the said failure”.¹¹ Thus, the assessing authority itself was vested with the legislative sanction to appreciate the “cause” of the taxpayer and rule out penalty where such cause was reasonable. A similar provision in the GST laws is conspicuously absent, which is surprising given that the very premise of GST laws being a tectonic shift in the tax regime warrants such leeway for genuine errors for the taxpayers. In fact, it is noteworthy that the beneficial provision in the service tax law remained in vogue only during the initial days of the law and was subsequently omitted. A similar mechanism could be adopted in the GST laws for the initial days of its administration. Such a provision can craft the delicate balance to waive the penalisation of largely compliant taxpayers who had bona fide reasons for default while leaving sufficient legroom with those engaged in deliberate evasion.

One also needs to be mindful of a recent decision of the Supreme Court which, albeit in a different context, has stressed upon the fact that penalty should not be imposed by State instrumentalities for trivial errors such as those in digital uploading.¹² Referring to its earlier decision,¹³ the Supreme Court empathised that it “cannot turn a Nelson’s eye to the ground realities that existed… though technology is a great enabler, there is at the same time, a digital divide”. The same holds true for a larger number of taxpayers who are neither digitally proficient for GST compliance purposes nor have resources to outsource such functions.

One would hope that policymakers would take note of the ground realities and be sympathetic to the cause of the taxpayers. In fact, the timing for their interjection is ripe. The GST Appellate Tribunals are expected to be functional soon. Under the scheme of the GST laws, such tribunals are the last fact-finding authority, entrusted with the task of appreciating the factual nuances of the dispute, before the matter travels further for legal adjudication by the constitutional courts. Thus, introduction of a statutory provision at this stage which can be relied upon by the tribunals to vivisect the factual aspects and condone the defaults of the genuine and bona fide taxpayers can scuttle any further penalty disputes.