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Understanding GST Offenses and Penalties in India

The article outlines various offenses and corresponding penalties under India's Goods and Services Tax (GST) law, primarily covered by Sections 122 to 128 of the CGST Act. It details different categories of offenses, including fake invoices, fraud, and tax evasion, along with their respective monetary penalties and, for severe fraud cases, potential imprisonment. The text also clarifies scenarios involving minor breaches, general penalty rules, and recent legislative amendments impacting e-commerce operators and tax collection provisions.

📖 3 min read read🏷️ Offenses and Penalties

Understanding GST Offenses and Penalties in India

The Central Goods and Services Tax (CGST) Act outlines various offenses and their corresponding penalties. Sections 122 to 128 of the CGST Act specifically address these provisions.

Recent Legislative Updates on GST Offenses and Penalties

As of the Union Budget 2024, significant amendments have been proposed regarding GST offenses and penalties. A change to Sub-section (1B) of Section 122 of the CGST Act aims to limit its application to e-commerce operators responsible for tax collection at source under Section 52. This amendment is effective retroactively from October 1, 2023. Additionally, Section 127 of the CGST Act will incorporate references to Section 74A, which is intended to supersede Sections 73 and 74. These changes will become binding upon notification by the CBIC.

Offenses Under GST

Defining an Offense in GST

An offense generally refers to a violation of a law or regulation. Under GST, an offense specifically means non-compliance with the stipulations of the GST Act and its associated rules.

Categorization of GST Offenses

The GST framework categorizes 21 distinct offenses. For clearer comprehension, these offenses are organized into several thematic groups:

Fake or Incorrect Invoicing

  1. If a taxable entity provides goods or services without a proper invoice, or generates a fraudulent invoice, it constitutes an offense.
  2. Issuing an invoice or bill without the actual provision of goods or services, contrary to GST regulations, is an offense.
  3. Using another legitimate taxable person's identification number to issue invoices is an offense.

Fraudulent Activities

  1. Submitting counterfeit financial documents or filing fraudulent returns to avoid tax obligations is an offense.
  2. Failing to provide requested information or giving inaccurate details during official proceedings is an offense.

Tax Evasion

  1. Collecting GST but failing to remit it to the government within three months is an offense.
  2. Even when GST is collected in violation of regulations, it must still be deposited with the government within three months; failure to do so is an offense.
  3. Fraudulently obtaining a refund of CGST or SGST is an offense.
  4. Claiming or utilizing input tax credit without genuinely receiving the corresponding goods or services is an offense.
  5. Intentionally underreporting sales figures to evade tax constitutes an offense.

Goods Supply and Transport Violations

  1. Transporting goods without the necessary accompanying documentation is an offense.
  2. Supplying or transporting goods with the knowledge that they are subject to confiscation is an offense.
  3. Destroying or tampering with goods that have been officially seized is an offense.

Other Offenses

  1. Operating without GST registration when legally mandated is an offense.
  2. Failing to deduct TDS or deducting an insufficient amount when required is an offense.
  3. Failing to collect TCS or collecting an insufficient amount when required is an offense.
  4. An Input Service Distributor violating rules related to claiming or distributing input tax credit commits an offense.
  5. Failing to maintain legally mandated books of accounts is an offense.

In cases involving fraud among the listed 21 offenses, a penalty equal to 100% of the tax evaded or ITC wrongly claimed/passed on will be imposed, with a minimum of Rs. 10,000. Specifically, for fake invoicing (points 1 and 2), tax evasion (point 4), and certain other categories (point 4), the penalty matches the evaded tax or misused Input Tax Credit.

Corporate and Entity Liability for GST Offenses

When a company commits an offense, both the company itself and the responsible officer (e.g., director, manager) are held accountable. For LLPs, HUFs, or trusts, the partner, Karta, or managing trustee bears liability. Read our article on liability to pay unpaid GST dues in certain cases.

Penalties Under GST

What Constitutes a Penalty?

While the term “penalty” lacks a specific definition within GST law, its interpretation stems from judicial rulings and legal principles. A penalty serves as a legal punishment for committing an offense or failing to fulfill a legal obligation. Penalties can be corporal (e.g., imprisonment) or pecuniary (monetary), and may be civil or criminal in nature. Under GST, both monetary and jail penalties are applicable.

Common GST Offenses and Their Penalties

Type of offenseAmount of penalty
Delay in filing GSTRLate fee of Rs. 100 per day per Act (CGST + SGST = Rs. 200/day), capped at Rs. 5,000. No late fee for IGST.
Not filing GSTR10% of tax due or Rs. 10,000, whichever is higher.
Committing fraud100% of tax due or Rs. 10,000, whichever is higher (plus potential jail).
Helping a person commit fraudUp to Rs. 25,000.
Opting for composition scheme when ineligibleDemand & recovery provisions apply. For fraud cases: 100% of tax due or Rs. 10,000 (higher). For non-fraud cases: 10% of tax due or Rs. 10,000 (higher).
Wrongfully charging a higher GST rate (if not submitted to government)100% of tax due or Rs. 10,000, whichever is higher.
Not issuing an invoice100% of tax due or Rs. 10,000, whichever is higher.
Not registering under GST100% of tax due or Rs. 10,000, whichever is higher.
Incorrect invoicingRs. 25,000.

Situations Without Penalties (but with potential interest)

Type of offenseAction
Incorrect type of GST charged (IGST instead of CGST/SGST)No penalty. Correct GST is paid, and refund for wrong payment is sought.
Incorrect filing of GST returnNo penalty, but 18% interest on shortfall.
Delay in payment of invoiceITC reversal if not paid within 6 months. No direct penalty.
Wrongfully charging a lower GST rate18% interest applicable on the shortfall.

Penalties for Fraud Cases

Committing any GST offense necessitates the payment of a penalty. The legal framework also specifies the underlying principles governing these penalties. In instances of fraud, the offender faces a penalty equivalent to 100% of the evaded or short-deducted tax, with a minimum of Rs. 10,000. This 100% penalty (minimum Rs. 10,000) applies to fraud-related situations among the 21 specified offenses.

Penalties for Abetting Fraud

A penalty of up to Rs. 25,000 can be imposed not only on the taxable person but also on any individual who:

  1. Helps another person commit GST fraud.
  2. Acquires or receives goods/services with full knowledge that it violates GST rules.
  3. Fails to appear before the tax authority after receiving a summons.
  4. Fails to issue an invoice according to GST regulations.
  5. Fails to account for or vouch any invoice appearing in their books.

Corporal Punishment (Jail Terms) for High-Value GST Fraud

Yes, GST law includes provisions for imprisonment in significant fraud cases, structured as follows:

Tax amount involved100-200 lakhs200-500 lakhsAbove 500 lakhs
Jail termUp to 1 yearUp to 3 yearsUp to 5 years
FineIn all three casesIn all three casesIn all three cases

These custodial sentences are applied in conjunction with monetary penalties. For more details please read our article on the prosecution.

Penalties for Non-Fraud Cases

For offenders who fail to pay tax or make partial payments without fraudulent intent, a penalty of 10% of the outstanding tax amount is levied, with a minimum of Rs. 10,000. This contrasts with deliberate fraud cases, where the penalty escalates to 100% of the tax amount. Thus, the penalty is significantly higher for intentional evasion compared to non-fraudulent omissions.

General Penalty Provisions

Any GST offense for which a specific penalty is not outlined can incur a general penalty of up to Rs. 25,000.

Minor Breaches Under GST

Minor breaches, defined as those involving a tax amount less than Rs. 5,000 or easily correctable errors committed without fraudulent intent, are treated differently. Such minor infractions will not typically incur significant penalties. In these situations, tax authorities might opt to issue a warning instead. This approach benefits businesses, particularly SMEs, which may commit inadvertent errors, especially during the initial phases of GST adoption. Penalizing genuine mistakes would disproportionately affect SMEs, given their limited resources compared to larger entities in adapting to GST.

General Principles for Imposing Penalties

These rules of penalty are generally consistent across various legal frameworks, including tax laws.

  1. Before any penalty is imposed, every taxable person will receive a show-cause notice and be given a fair chance to present their case.
  2. The tax authority is required to provide a clear explanation for the penalty, detailing the reasons and the nature of the offense.
  3. Voluntary disclosure of a legal breach by an individual may be considered by the tax authority as a factor for reducing the penalty.

Frequently Asked Questions

What are the key types of GST offenses in India?
GST offenses in India are broadly categorized into areas such as fake or incorrect invoicing, fraudulent activities including false financial records and information suppression, tax evasion, violations related to goods supply and transport, and other non-compliance issues like failing to register or maintain proper books of account.
How do penalties for GST fraud differ from non-fraudulent offenses?
Penalties for GST fraud cases are severe, typically amounting to 100% of the tax evaded or incorrectly claimed, with a minimum of Rs. 10,000. In contrast, non-fraudulent offenses or short-payments generally incur a penalty of 10% of the tax due, also with a minimum of Rs. 10,000, reflecting the absence of deliberate evasion.
Are there any situations where interest applies but no penalty is levied under GST?
Yes, certain situations might incur interest without a direct penalty. Examples include charging the incorrect type of GST (e.g., IGST instead of CGST/SGST), incorrect filing of a GST return leading to a shortfall, delayed invoice payments (resulting in ITC reversal), and wrongfully charging a lower GST rate, where 18% interest applies to the shortfall.
What are the consequences for companies or LLPs if a GST offense is committed?
When a company, LLP, HUF, or trust commits a GST offense, both the entity itself and the responsible individual (such as a director, manager, partner, Karta, or managing trustee) are held liable. This dual accountability ensures that both the organization and its leadership face consequences for non-compliance.
How does the GST law treat minor breaches or errors?
Minor breaches under GST, which involve tax amounts less than Rs. 5,000 or easily rectifiable errors made without fraudulent intent, are generally treated leniently. Such infractions typically do not incur substantial penalties, and tax authorities may opt to issue a warning instead of imposing a fine, especially benefiting small and medium-sized enterprises.