Saturday, August 22, 2020

ITC availed after the time Limit under section 16(4).......... Reply filed by a person to GST Department (This is for your Information Only, Not a professional Advice )

(This Post is only for the information of the readers and shall not be taken as a professional advice. Readers shall read the law and understand the law and take informed decision accordingly. The author does not accept any responsibility in this regard).......



                                                                                  Date: 22.08.2020

From

 

…………………………..

…………………………..

…………………………..

 

To

…………………………..

…………………………..

…………………………..

 

Dear Sir,      

          Sub:    Reply to your Notice No: DIN-

 

Ref:    GSTIN:

 

I have received the above-mentioned Notice by email directing me to pay Rs. 1,54,740/- along with interest U/s 50 of the Central Goods and Services Tax Act, 2017 at the earliest and report compliance.

It is alleged in your notice that, on verification of GSTR-3B returns filed by me for the period March-2019, it is seen that I have filed GSTR-3B after the due date of filing of return U/s 39 for the month of September-2019 in which I have availed an Input Tax Credit amounting to 1,54,740/- for the said period. Further alleged that the Input Tax Credit availed by me is in violation of Section 16(4) of the Central Goods and Services Tax Act, 2017.

In response to the notice, I wish to submit the following for your kind consideration and favorable disposal: -

1.    Section 16(4) of CGST Act states as follows:

Section 16(4) relevant for the period FY 2018-19

"A registered person shall not be entitled to take input tax credit in respect of any invoice or debit note for supply of goods or services or both after the due date of furnishing of the return under section 39 for the month of September following the end of financial year to which such invoice or invoice relating to such debit note pertains or furnishing of the relevant annual return, whichever is earlier:"

2.    Initially the mechanism for availing the ITC has been provided in GSTR 2 which has been kept in abeyance and therefore the ITC should have been availed only through GSTR 2 and nowhere in the law it has been prescribed that the ITC can be availed through GSTR 3B.

 

3.    Section 47 and section 50 of the CGST Act, 2017 allows the taxpayer to file the return even after the due date on payment of late fee u/s 47 and on payment of interest u/s 50(1) of the CGST Act, 2017.

 

4.    That means Section 47 and section 50 allows the taxpayer to file the return even beyond the due date on account of any reasons without any condition of disallowing ITC. The privilege of filing the return remains AS IT IS (i.e. not subjected to the condition that if return is filed delayed, ITC will be denied) even after the due date with the only condition that the Government has to be compensated for its revenue loss for the said period by payment of interest under section 50(1) and late fee for delay in furnishing of return u/s 47.

 

5.    Therefore, it appears that provision crafted in section 16(4) which restricts the time period to avail the ITC stands contrary to the provision of section 47 and section 50. Had section 16(4) been the non-obstante clause, i.e. had the provisions of section 16(4) started with “Notwithstanding anything contained in this Act”, then the time limit prescribed under section 16(4) to restrict availment beyond the certain time period would have been valid.

 

6.    I am liable to pay interest and late fees for the delay in filing GSTR 3B for the month of March, 2019 and therefore, the Input Tax Credit availed by me in GSTR 3B for the month of March, 2019 is strictly as per the Law.

 

7.    Secondly, it may please be noted that Section 39 allows me to file the return even without the payment of tax whilst the GST Common Portal does not allow me to file the return without payment of tax.

 

8.    I invite your attention to the following legal provisions:

 

Section 39(1) of the CGST Act, 2017 - Section dealing with filing of RETURN

"Every registered person, other than an Input Service Distributor or a non-resident taxable person or a person paying tax under the provisions of section 10 or section 51 or section 52 shall, for every calendar month or part thereof, furnish, in such form and manner as may be prescribed, a return, electronically, of inward and outward supplies of goods or services or both, input tax credit availed, tax payable, tax paid and such other particulars as may be prescribed, on or before the twentieth day of the month succeeding such calendar month or part thereof."

 

Section 39(7) of the CGST Act, 2017 - Section dealing with PAYMENT

"Every registered person, who is required to furnish a return under sub-section (1) or sub-section (2) or sub-section (3) or sub-section (5), shall pay to the Government the tax due as per such return not later than the last date on which he is required to furnish such return:"

 

9.    On perusal of the aforesaid provisions, it is amply clear that the due date for return and payment of tax are prescribed independently and payment of tax is not a pre-condition for filing of return. The due date for payment of tax is the last date on which he is required to file such return. For instance, GSTR 3B of April, 2018 can be filed at any time till the 20th May, 2018. Let us assume, it has been filed on 10th May, 2018. Here, it needs to be noted that although the last date for payment can be till 20th May, 2018 but the GST Common portal does not allow to file GSTR 3B unless and until payment of tax liability is made before filing GSTR 3B. Due to this gap in the implementation of the GST Law at the GST Common Portal, the taxpayer has been suffering and are unable to comply with the law.

 

10. I also invite your attention to the following legal provisions:

 

Section 2(117) of the CGST Act, 2017

 

"Valid return" means a return furnished under sub-section (1) of section 39 on which self-assessed tax has been paid in full.

 

In case, the tax liability as self-assessed in GSTR 3B cannot be paid in full by the due date, the return so furnished will not be treated as valid return. It is pertinent to note that there is no condition for making payment of tax as a pre-condition for filing return of Form GSTR-3B and in absence of any such provision, on-line system of department, which did not allow filing of returns without payment of tax liability admitted as per such returns, is contrary to legal provisions. Hence, it can be noted from the aforesaid legal provisions that GST Common Portal ties the hands of the taxpayers to make the payment before filing GSTR 3B.

 

 

11. Accordingly, as per the legal provisions of the law, had the GST Common Portal allowed the facility of self-assessing the tax liability by filing GSTR 3B without payment of tax, the taxpayer would have claimed Input Tax Credit well within the time limit prescribed in section 16(4).

 

12. Moreover, the availment of Input Tax Credit by me was also in compliance with Removal of Difficulty Order No: 2/2018 Central Tax dated 31.12.2018 which was applicable for the Financial Year 2017-18. The same situations narrated in the Order existed for the Financial Year 2018-19 as well.

 

13. Therefore, the availment of Input Tax Credit by me in GSTR 3B for the month of March, 2019, even if it is filed on 15.11.2019, is in order.

 

Hope I have clarified the points raised in your Notice and Request you to drop the proceedings initiated against me.

Yours Truly,

For M/S…………………..

 

 

 

Proprietor.

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