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rule 36(4), Goods and Services Tax - GST

Issue Id: - 117264
Dated: 4-6-2021
By:- sumanta nayak
rule 36(4)

  • Contents

If any one taken excess ITC allowed under rule 36(4),but the same invoice uploaded after due date then need reply of the following querries:

1.If he has to reverse ?

2.If yes then how to claim ITC again ?

3.If he has not reversed ,whether the same available at time of scrutiny ?

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Showing Replies 1 to 6 of 6 Records

1 Dated: 4-6-2021
By:- Rajagopalan Ranganathan

Sir,

Rule 34 (4) of CGST Rules, 2017 stipulates that " Input tax credit to be availed by a registered person in resis in possession of valid invoice issued by the supplierpect of invoices or debit notes, the details of which have not been 5[furnished] by the suppliers under sub-section (1) of section 37 [in FORM GSTR-1 or using the invoice furnishing facility], shall not exceed 5 per cent. of the eligible credit available in respect of invoices or debit notes the details of which have been furnished by the suppliers under sub-section (1) of section 37 6[in FORM GSTR-1 or using the invoice furnishing facility]..

Therefore if any excess credit exceeding 5% limit is taken the same should be reversed with interest. However you can take credit whenever the supplier upload the invoice in subsequent months. However this provision is under challenge on the ground that when recipient is in possession of valid invoice issued by the supplier under rule 46 of CGST Rules, 2017 the Department cannot deny the credit. The picture will be clear only when the courts pronounce their verdict on this matter


2 Dated: 4-6-2021
By:- sumanta nayak

Please reply on point no 3


3 Dated: 5-6-2021
By:- Shilpi Jain

The answer to your query will depend on the period to which the invoice pertains. Pls have a look at this article

https://www.taxmanagementindia.com/visitor/detail_article.asp?ArticleID=9746


4 Dated: 5-6-2021
By:- Rajagopalan Ranganathan

Sir,

If the department finds out the mistake at the time of scrutiny, the department will recover the excess credit availed along with interest and will impose penalty also under section 122 or 123 as the case may be.


5 Dated: 5-6-2021
By:- Shilpi Jain

If it is for the period prior to Oct '19 for sure nothing can be asked by the department and even if they ask it is surely contestable. For the period after this until the Finance Act 2021 comes into effect amending section 16(2) it is still contestable.


6 Dated: 9-6-2021
By:- niranjan gupta

Clause (aa) to sub section (2) of Section 16 was inserted by the Finance Act, 2021. Before that section 36(4) has no validity. The GOI recognized this facts and made amendment in section 16.

Following is the insertion:

5[(aa) the details of the invoice or debit note referred to in clause (a) has been furnished by the supplier in the statement of outward supplies and such details have been communicated to the recipient of such invoice or debit note in the manner specified under section 37;]


1

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