Input Tax Credit query, Goods and Services Tax - GST

[Nishant Mitra]

I had purchased two tipper vehicles of Mahindra Trucks and Buses from local dealer at Jamshedpur in July and October 2017. I have the GST tax invoices copy but they don't have my GST no. mentioned. Dealership has shut his shop around Dec 2017 and recently NPA and DRT process has started against him. I have been following up with him since long but he didn't respond. I was unable to claim any ITC due to this. Is there any way I can claim ITC now? I had registered for GST for this same very purpose and since I didn't get any ITC my C.A. has filed zero return all along in my firm. I have got the dealership gst no. 20ABYFS1756Q1ZC checked and he too has not filed all his returns of 2017. He kept saying his gst his locked and he can't ammend anything as his accounts person had all his details of gst portal and even gst login details reset option sends otp to mobile no. and email which are not active now. Is there any way now that I can claim ITC on purchase of 2017 as I am not getting any ITC of around 14lacs because of fraud dealer and misguidance from my C.A. I wrote to Mahindra in July 2018 and even contacted their representatives before that but they didn't help.

Posts / Replies

[KASTURI SETHI]

There are two major discrepancies :-

1. Absence of GST registration number on tax invoice.

2. It has become time barred.

There is a ray of hope for relief through litigation only. Although as per Section 155 of CGST Act, 2017 the burden of proof is cast upon the buyer to prove that ITC has been taken correctly as per law yet at the same ITC cannot denied to the buyer on account of supplier's fault. (There are case laws in this aspect.) It is mandatory for you to collect all the documentary evidences.Basic requirement for availment of ITC is tax invoice, tax-paid proof and utilization of ITC in the course or furtherance of business, registration certificate of both the vehicles with the concerned State Govt. Authority of registration of vehicles.(It is physical documentary evidence), entry of both vehicles in your books of accounts. All these evidences will help you to get ITC. Your supplier is facing litigation and records might not be with him. (This can be ground for not being able to take ITC within prescribed time limit). When the case is in litigation, time-bar aspect is relegated to the background. In the absence of your GST registration no. on the invoice (all other evidence in your favour), you should apply manually for your substantive right to the jurisdictional D.C./A/C., Incharge of the Division. The department may reject your application (but you are to first exhaust this channel), thereafter, you will be able to get relief through Appellate Authorities. In such cases relief is possible either through CESTAT or High Court. You will have to fight hard legally.

At present the Common Portal System will not allow.

[Nishant Mitra]

Dear Sir,

Thankyou for your guidance. I will try and do it accordingly. I have one more query related to this. In my ITR my C.A. has not booked TCS for these two vehicle purchases as the very same dealer didn't deposit the TCS against my PAN. Should I get my ITR revised and book TCS even when the dealer has not deposited TCS?

[KASTURI SETHI]

No. You cannot deposit TCS yourself on behalf of another registered person. TCS is indirect tax and not direct tax like Income Tax.The registered person who has not collected TCS from your payment is a defaulter.He is to collect TCS from your payment and deposit with Govt. As per Section 52 of CGST Act, he is also required to file statement to this effect.

This is my view.

[Nishant Mitra]

Dear Sir,

The dealer has collected TCS from me. In the tax invoices my pan is mentioned but in one of the invoice my pan has typo errors. The TCS collected by the dealer has not been deposited by him so it was not reflecting in my 26AS. My C.A. while filing my itr didn't make any TCS claim as tcs was not reflecting in my account. So there is no vehicle Purchase in my itr. My question was whether I should ask my C.A. to revise my itr and claim tcs was paid by me and book purchase of these two vehicles in 44AE of ITR

[KASTURI SETHI]

Answer to your query at serial no.4 above is YES.

Also go through Board's Flyer No.48 dated 1.1.18 which is appended below:

TCS Mechanism under GST

C.B.E. & C. Flyer No. 48, dated 1-1-2018

 

[Nishant Mitra]

Dear Sir,

Thanks for the knowledge shared by you. One of the locally available senior C.A. ( not my regular C.A.) advised that if I book purchase of two vehicles in 2017 now by ITR revision or if by any chance the dealer deposits TCS collected by him in 2017 against my PAN now,I will be in big trouble from the department as it will be treated as deliberately hiding purchase of vehicles earlier. Very confused what to do. Being a novice to financial matters and meeting a fraud dealer for purchase of commercial vehicles if am in a state where even claiming genuinely Paid taxes appears to be calling trouble for myself

[KASTURI SETHI]

Frankly speaking I am not expert in Income Tax Act. I have basic knowledge about Income Tax. You may have seen my profile in this site. My specialized fields are Service Tax, Central Excise & GST.What I know about TCS under GST, that is not to be deducted by you. There should be no double entry. There is no such problem which cannot be solved. You need to hire the services of an Advocate-cum-CA who is expert in both fields.

[KASTURI SETHI]

Beware of so-called experts. During my service I have met many such experts. They further sub-hire and cost is to be borne by the consumer. Always choose the right person.

[Nishant Mitra]

Dear Sir,

Thankyou for your valued insights. I make out that I should ask my regular C.A. to revise my last ITR and claim TCS even when the dealer has not deposited it because I have the TAX invoices which proves TCS ws paid by me. My C.A. should show the purchases in the revised section 44AE

[KASTURI SETHI]

Plus point is that you are not concealing anything from both of the departments. Regarding overvaluation/double valuation and double taxation, the CAs are competent to handle such cases. Still if you have any doubt, you can write a letter (manually) to the department. Nobody can refuse to accept any letter. You want to pay full tax so there is nothing to worry.