RELATING TO ITC VIOLATION SEC 16(4) OF CGST ACT 2017, Goods and Services Tax - GST

My client recieved a notice that you have availed ITC in January 2019, February 2019 and March 2019 in GSTR 3B Returns for FY 2018-19 after 21-10-2019 which is violation of provisions of Section 16(4) of CGST Act 2017.

Actually my client has taken ITC of respective months only and not taken any ITC of F Y 2017-18 but filed after 21-10-2019 with late fees.

kindly guide me if there is any violation of provisions of Section 16(4) of CGST Act 2017.

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Showing Replies 1 to 15 of 37 Records

1 Dated: 3-2-2020 By:- Ganeshan Kalyani

For FY 18-19, the time limit to claim credit was 20.10.2019 i.e. the due date of filing of GSTR 3B for the month of Sept 19.

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2 Dated: 3-2-2020 By:- KASTURI SETHI

There is a violation of Section 16(4) CGST Act. The department's notice/letter is legally correct.

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3 Dated: 4-2-2020 By:- GB Rao

Dear sir,

I agree with the views of experts. There is a violation of provisions of Section 16(4) of CGST Act, 2017 in your case. The last date for availing input tax credit relating to invoices issued during the financial year 2018-19, is the last date of filing of September 2019 GSTR-3B return i.e., 20/10/2019. Hence, you are supposed to avail input tax credit by 20/10/2019. In your case, you have filed the returns after 21.10.2019 which tantamount to availing input tax credit after 21.10.2019 and hence it is a violation of provisions of Section 16(4) of CGST Act, 2017.

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4 Dated: 4-2-2020 By:- Alkesh Jani

Shri

I agree with the views of our experts, but as per the decision of Gujarat High Court, GSTR-3B is not the return in terms of Section 39, therefore, the last date to avail credit is before the date of filing of Annual return. Pls refer Issue Id :- 115959.

However, the facts and circumstances may be taken into account and of course, legal process is to be followed.

Thanks

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5 Dated: 4-2-2020 By:- KASTURI SETHI

GSTR 3B is a return w.e.f. 1.7.17 (after amendment retrospectively).

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6 Dated: 4-2-2020 By:- GB Rao

Dear sir,

Notification No.49/2019 Central Tax Dt.9.10.2019 seeks retrospective amendment from 1st July, 2017- where the dealer furnishes return in Form GSTR-3B, he shall not be required to furnish return in Form GSTR-3.

In the said Notification

4. In the said rules, in rule 61,-

(a) for sub-rule (5), the following sub-rule shall be substituted, with effect from the 1st July, 2017 namely:-

“(5) Where the time limit for furnishing of details in FORM GSTR-1 under section 37 or in FORM GSTR-2 under section 38 has been extended, the return specified in sub-section (1) of section 39 shall, in such manner and subject to such conditions as the Commissioner may, by notification, specify, be furnished in FORM GSTR-3B electronically through the common portal, either directly or through a Facilitation Centre notified by the Commissioner:

Provided that where a return in FORM GSTR-3B is required to be furnished by a person referred to in sub-rule (1) then such person shall not be required to furnish the return in FORM GSTR-3.”; (b) sub-rule (6) shall be omitted with effect from the 1st July, 2017.

Earlier, Hon'ble High Court in the case of AAP & Co., Vs.UOI = 2019 (7) TMI 401 - GUJARAT HIGH COURT held that the Form GSTR-3B is not a Return, rather a Return specified for Section 39 in Form GSTR-3.

In view of this, the stand of the Department in issuing notices for violation of provisions of Section 16(4) of CGST Act, 2017 is correct in my view.

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7 Dated: 4-2-2020 By:- Alkesh Jani

Shri

The one of the ground as discussed by the Hon'ble High Court is required to be taken into account

"It was notified vide Notification No.44/2018 Central Tax dated 10th September 2018 that the due date of filing the return under Section 39 of the Act, for the months of July 2017 to March 2019 shall be subsequently notified in the Official Gazette."

Moreover, Notification No.04/2020-CT dated 10.01.2020 is also vital before arriving to any conclusion.

Thanks

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8 Dated: 4-2-2020 By:- Gaurav Poddar

Dear all;

In the above case can the credit be disallowed only on the grounds that return is filled after 20.10.19.

if yes can any body suggest a way out to avail the credit.

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9 Dated: 6-2-2020 By:- ramm jainn

please suggest any way to come out. Is juridiction having any power to help?

If not then this is injustice and harrassment? Late filing with penalty is not a crime?

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10 Dated: 6-2-2020 By:- KASTURI SETHI

I agree with you that tax payers must not suffer loss of ITC which is their substantive right. GST Laws and Common Portal System both are at its infancy stage. It takes years to stabilize. Govt. has made unlimited amendments in GST Acts since its implementation. It is a common cause. So you make a humble request to the GST Council to solve your problem. You may make a representation of your grievances to the Chairperson, GST Council, New Delhi through Trade and Industry Association. Pl. ensure that language should be polite

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11 Dated: 6-2-2020 By:- ramm jainn

My total itc was 16 lakhs as per 18% and turnover was only 70 lakh. My crime was I filed return on 1 november 2019.

Government should extend the date else I have no option but to shut down business. This is not the right way to generate revenue.

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12 Dated: 6-2-2020 By:- KASTURI SETHI

I realize your Grievances. I am of the view that you must make all-out efforts. You will be successful. Raise your voice so that it should reach GST Council. If you cannot approach Trade and Industry Association, write a simple letter and email to the Chairperson GST Council.

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13 Dated: 7-2-2020 By:- GB Rao

Dear sir,

As rightly advised, you may approach trade association as well as representing CBIC in this matter. There may be many Tax payers facing the similar situation. You better coordinate with your fellow trade who are facing the same problem and fight collectively by filing writ petition with Hon'ble High Court for redressal of your genuine problem.

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14 Dated: 7-2-2020 By:- KASTURI SETHI

The phrase,"whichever is earlier" mentioned under Section 16(4) of CGST Act has opened Pandora 's box. Laws are framed for welfare of the public and not for snatching fundamental rights. Making representation to Board and GST Council is easier and free of cost and it will yield result faster than Court.

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15 Dated: 7-2-2020 By:- ramm jainn

Dear sir,

As advised, can we directly approch high court without appealing to gst department??

As also suggested I have written e maii to contact.gstcouncil@gov.in and cbicmitra.

Gstcouncil replied to contact juridiction but juridiction has not given appropriate answer.

The question is how can we leave our own itc and If claimed, later pay the same with interest of section 16(4) and interest of section 36(4). Both interest areinterest are applicable as per juridiction office.

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