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Sec 16(4) Reversal of ITC when 3B is filed belatedly, Goods and Services Tax - GST |
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Sec 16(4) Reversal of ITC when 3B is filed belatedly |
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As we are aware, the Gujarat High Court in AAP judgement has held that (a). Sec 16(4) refers to due date of filing return u/s 39; (b). The form to be filed u/s 39 is GSTR 3 as prescribed in Rule 61; and (c) in so far as GSTR 3 has not been enforced, even if one files the GSTR 3B beyond the due date of filing the return for Sept following the end of the financial year, the ITCs can be taken. Subsequently, Rule 61 was amended to replace GSTR 3B for GSTR 3 w.e.f. 1/1/21. My question is whether the GUJARAT HIGH COURT judgement holds the forte till rule 61 was amended. For eg., if Mar 20 return was filed in Nov 20, can we still quote the Gujarat high court judgement to utilise the ITC? Posts / Replies Showing Replies 1 to 19 of 19 Records Page: 1
The Hon’ble Supreme Court of India in UNION OF INDIA & ORS. VERSUS AAP AND COMPANY [2021 (12) TMI 840 - SUPREME COURT] reversed the judgment of the Hon’ble Gujarat High Court.
Sir, Thanks a lot for your feedback. Regards G. Srikanth
Dear Sir It may also be noted that, the restriction of time limitation to avail ITC under section 16(4) of the Act has been challenged before the Hon’ble Supreme Court in the Case of MRITYUNJAY KUMAR VERSUS THE UNION OF INDIA & ORS. - 2024 (1) TMI 288 - SC ORDER against the Hon’ble Patna High Court Order rendered in the case of GOBINDA CONSTRUCTION, MRITYUNJAY KUMAR VERSUS UNION OF INDIA, STATE OF BIHAR, PRINCIPAL CHIEF COMMISSIONER OF CGST AND CENTRAL EXCISE, PATNA, PRINCIPAL COMMISSIONER PATNA 1, CGST AND CENTRAL EXCISE, PATNA ADDL. COMMISSIONER OF STATE TAX (APPEAL) , PATNA, ASST. COMMISSIONER OF STATE TAX, PATNA - 2023 (9) TMI 902 - PATNA HIGH COURT
Sh.G.Srikanth Ji, (i) Time restriction for availing Modvat credit had been in force since 1986, the year of introduction of Modvat Credit Scheme. (ii) You have referred to the amendment of Rule 61 w.e.f. 01.01.2021. You are not talking of Section 16 (4) of CGST Act. A rule cannot override or be contrary to a Section held by Hon'ble Supreme Court in the case of COMMISSIONER OF CENTRAL EXCISE, JAMSHEDPUR VERSUS ASHOK ARC - 2004 (12) TMI 94 - SUPREME COURT. SC-3-member Bench. (issue different) (iii) Rules and Notification cannot override Act and cannot be derogatory to the object of the Act----held by the Supreme Court in the case of UNION OF INDIA VERSUS JALYAN UDYOG - 1993 (9) TMI 108 - SUPREME COURT. (issue different).
Sh.Sadanand Bulbule Ji, Sir, W.r.t. serial no.3 above, is it not hoping against hope ? Your views please.
Dear Sir ji While vouching the history of time limitation explained by you, I am transmitting the raging feelings of business community this way: As far as ITC landscape is concerned, Section 16[4] plays the role of "cat among the pigeons".Meaning, it is not protecting what is due in terms of Section 16[1] & [2], the engine of ITC. End of the day, law is the law. It has to be respectfully complied by all Taxation discipline demands "Stop watch" for everything to maintain the dignity of its benefits. If there is no "sense of time", then chaos is the rule. Civilized administration does not approve it.
Sh.Sadanand Bulbule Ji, Sir, During my posting in Audit wing, I detected such cases where the assesseees availed modvat credit/cenvat credit twice on the same invoice after a gap of one or two years. in some guise. Such misuse was detected through out India. This is a true incident. That was not era of high technology. At that time in the case of bulky Modvatable/Cenvatable invoices, it was not feasible to check each and every entry. Checks were exercised at random. So the time restriction was enforced to plug the leakage of revenue. . All is NOT bad in India. There is no dearth of honest assessees in India. I also feel the pulse of the Trade and Industry. Now the matter is sub judice with Hon'ble Supreme Court. Let us hope some way-out from the Apex Court so that genuine Registered Tax Payers should not suffer.
Dear Sir ji The machinery of GST regime is striving to build harmony and trust between the tax taxpayers and the tax administration in terms of transparency in thoughts, opinions, actions and compliance of the same with equal force from both sides. The overall adjudication approach should be guided by tangible evidence of breach of law and not on suspicion.
Sh.Sadanand Bulbule Ji, Sir, Agreed but challenging constitutional validity of Section 16(4) tant amounts to asking for moon. This is my hunch.
Dear Sir ji "Compliance first, ITC second". This is what the history of judicial rulings keep such system intact. It is natural for the losers of ITC to cry in public. But the present GST law does not & cannot remove their tears. It is only they have to ensure that, they do not cry for "Moon".
Dear all My categorical opinion about Section 16 [4] is like this: " If lightning strikes a rotten tree, it collapses. It's not the fault of the lightning". So it is advisable to have a healthy tree with the lightning conductor.
Sh.Sadanand Bulbule Ji, Sir, What I wanted to say you have expressed in a very refined, polished, flowery and bombastic language. It reminisces me of the doctrine and also famous dialogue in Shakespeare's King Lear, "Nothing will come of nothing".
Dear Sir ji The subject is such that, it brews similar thoughts. That's the intricate beauty of Section 16[4] as of now.
Sh.Sadanand Bulbule Ji, Sir, Which is most appropriate phrase 'intricate beauty' or 'intricate ugliness' or 'apparent ugliness' here ? My opinion is 'intricate ugliness' is the most appropriate phrase to be used here. Very keen to hear from you. Thanks & regards.
Dear Sir ji Rest apart the core subject, I appreciate your microscopic talent to touch the invisible bottom of each and every word in different dimensions. It's quite fascinating hobby. Unless & until the Hon'ble Supreme Court invalidates Section 16[4], which is seldom possible, I feel it carries intricate beauty. Otherwise we are opposing what we have said in its favour so far, if the word " intricate ugliness" is used. "Beauty is in the eye of the beholder". Regards.
Dear all I always believe that, one should have tolerance for the opinions of others, because tolerance is the greatest virtue. Therefore it would be unfair to force one's views on others. It's the choice of the querist to accept or reject. In a way, it is the querists who are providing opportunities to express opinions. Otherwise there is no scope for exchange of healthy and innovative thoughts in such popular public forum for mutual enrichment of knowledge. May the tribe of querists increase. [ I am also one of such tribe]
Sh. Sadanand Bulbule Ji, Sir, I agree with you in toto. Here famous quotes in support of your views. (i) Eugene Ionesco, a renowned playwright, wisely remarked, “It is not the answer that enlightens, but the question.” (ii) Questions are more important than answers.------------- Terry Heick Expert in education
Sir, ITC saves Cash outflow while paying GST. So, instead of Govt. the taxpayer should be keen to claim it as early as possible. Why to keep ITC on hold till the vendor take his sweet time to correct the compliance. Yes, for genuine taxpayer and for genuine scenario there must be a special window from Govt to claim that credit as an exceptional case.
The said rule was amended retrospectively. Page: 1 |
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