Input tax Credit, Goods and Services Tax - GST

[Bharat Cholleti]

Dear sir,

I have not filed original return for the month of February and March 2019 till Dec 2019 the original return. Now my question is shall I eligible to take input tax in this situation?is section 16(4) is applicable. kindly clarify.

Posts / Replies

[KASTURI SETHI]

Not eligible. Hit by time limitation under Section 16(4) of CGST Act.

Also read this :

"The use of word, 'shall' in the statute indicates that input tax credit cannot be claimed beyond prescribed limit and it is mandatory. The assessing authority does not have power to dilute the mandatory requirement"-------------- Supreme Court in the case of ALD Automobile (P) Ltd. Vs. Commercial Tax Officer reported as 2018 (364) ELT. 3 (SC) = 2018 (10) TMI 814 - SUPREME COURT.

Input Tax Credit is a concession provided by the Legislature and not fundamental right of assessee.

[PAWAN KUMAR]

Rightly explained by sh. Kasturi sir. You cannot avail ITC. The time was allowed up to gst return filing for September 2019.

[Alkesh Jani]

Shri

In this regards, my view is that, in terms of Section 16(1) states that “Every registered person shall subject to such conditions and restrictions as may be prescribed and in the manner specified in section 49, be entitled to take credit of input tax charged on any supply of goods or services or both to him which are used or intended to be used in the course or furtherance of his business and the said amount shall be credited to the electronic credit ledger of such person.

The Section 16(4) states that “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.”

The Section 49(2) states that “The input tax credit as self-assessed in the return of a registered person shall be credited to his electronic credit ledger, in accordance with section 41, to be maintained in such manner as may be prescribed.”

The Section 41 (1) states that “Every registered person shall, subject to such conditions and restrictions as may be prescribed, be entitled to take the credit of eligible input tax, as self-assessed, in his return and such amount shall be credited on a provisional basis to his electronic credit ledger”

From the conjoint reading it is very clear that restriction to avail ITC is with reference to Invoices and debit and this condition cannot be extended to filing of return. The prime question is limitation for taking eligible ITC is in books of Account or by way of filing return? The answer can be Books of Account as Return is merely a declaration, and cannot take away the right to avail credit. Once credit is taken in books of account, it is a “property” under Article 300A of Constitution of India, as held by various court, needless to mention that it is a vested right. Therefore, if a person is filing return for particular tax period lately, and he has availed ITC in books of Account (following the conditions) he can declare the same in his return.

This are my views, please enrich me, if mistaken.

Thanks

[PAWAN KUMAR]

Dear Sir,

As per the act which is binding on the taxpayer to follow. it is very clear. ITC is not allowed in such cases.

[KASTURI SETHI]

Dear Sh.Alkesh Jani Ji,

My views are as under:-

There are two conditions regarding time bar limit :

(i) Monthly return for September by 20th of October

(ii) Annual Return due date is 31st December

Now emphasis is on “whichever is earlier” of the above two conditions. If monthly return for September, 19 is filed on 18th October that will be the time limit.

Secondly, if Annual return for 18-19 is filed on 18th September, then 18th September will be the last date for availing ITC for the financial year 18-19 and NOT 18.10.19. Earlier is 18.9.19

Invoices and debit notes etc. are basic documents for availing ITC but these do not override the bar of “ due date of filing monthly return for September or Annual Return, which ever is earlier”. Even if ITC is taken in books of accounts much earlier, even then the condition of due date of filing return cannot be overshadowed by the date of taking ITC in books of accounts.

Why do you use the words, “merely a declaration” ? GSTR 3B return is self assessed return. It is not merely a declaration. After self-assessment, nothing is left in the hands of tax-payer, the ball is in the court of the department. The department is to examine whether the taxpayer has assessed the return correctly or not. Whether the element of mis-declaration is present or not ? When we talk of “self-assessed return” the whole responsibility is cast upon the tax payer inasmuch as on this basis it becomes cake walk for the department to invoke extended period.

Thus as already opined the department is legally very strong on the issue of time bar. If any relief is to be granted to the tax-payer, Section 16(4) has to be amended. It is termed as Hobson's choice for the assessee.

[Alkesh Jani]

Dear Shri Kasturiji Sir,

First of all, thanks for expressing your views. Now, the furnishing a return in prescribed form means to post the figures which are in books of account. The term “due date of filing of return” is with reference to last date for availing ITC. I have used words “merely a declaration” because it a form prescribed to be furnished and whatever declared under this form is to be true and correct. It can be furnished along with late fees. So if ineligible ITC is declared in the form then department can alleged taxpayer for mis-declaration, if not declared, then department can alleged taxpayer for suppression of facts. I also invite your attention to Section 35 under which Accounts is to be maintain.

Thanks

With Regards

[KASTURI SETHI]

Dear Sh.Alkesh Jani Ji,

I agree with all the views expressed by you. At the same time, I feel that there is no escape route from the clutches of time bar under Section 16(4).