TMI Blog2021 (9) TMI 381X X X X Extracts X X X X X X X X Extracts X X X X ..... is evident that while the applicant has availed input tax credit in the months of January 20, February 20 and March 20 respectively, the supplier has declared such outward supplies made by him in his respective FORM GSTR-1 in the month of November 20 and has also paid the taxes on such supply upon furnishing of return in FORM GSTR-3B in the month of November 20. Whether such belated compliances by the supplier towards payment of tax to the Government would disentitle the applicant to avail of input tax credit as per the condition laid down in sub-section (c) of section 16 of the GST Act read with the rules made there under? - HELD THAT:- The entitlement of input tax credit is governed by sections and rules made under CHAPTER V of the GST Act and Rule respectively. Further, section 41 of the GST Act which deals with Claim of input tax credit and provisional acceptance thereof speaks that every registered person shall be entitled to take the credit of eligible input tax on self-assessment basis subject to such conditions and restrictions as may be prescribed. We admit that FORM GSTR-2B has been made effective from 01.01.2021 but at the same time, the applicant cannot deny t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ds Ltd (hereinafter referred to as, the applicant) is stated to be a producer and supplier of coal. The applicant submits that he has received services from M/s Gayatri Projects Ltd (GSTIN: 19AAACG8040K1ZG) and has availed of input tax credit during the tax periods January 20, February 20 and March 20 respectively against 03 (three) invoices bearing number 43 dated 01.01.2020, 44 dated 01.02.2020 and 45 dated 02.03.2020 issued by the said supplier of services. Payments against such supplies have also been made by the applicant. 1.3 However, M/s Gayatri Projects Ltd has furnished FORM GSTR-1 and FORM GSTR-3B for the aforesaid tax periods i.e., January 20, February 20 and March 20 in the month of November 20 which has restricted input tax credit in respect of above-noted invoices in the auto-drafted FORM GSTR-2B of the applicant for the month of November 20 with the remark Return Filed Post Annual Cut-off . 1.4 Based on the aforesaid facts, the applicant has made this application under sub-section (1) of section 97 of the GST Act and the rules made there under raising following questions vide serial number 14 of the application in FORM GST ARA-01: Whether the applicant ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f Rule 59 Rule 60, in the present form, the earlier Rule 59 Rule 60 were in existence till 31-12-2020 which did not prohibit, in any manner, availment of Input Tax Credit claimed by the Applicant in the instant case. 2.4 The GST Act came into existence w.e.f. 01-07-2017 with the specific motive of seamless availment of Input Tax Credit and every registered person relied upon it. 2.5 Section 16 of the GST Act has prescribed the eligibility and conditions for taking input tax credit. Sub-section (2) of section 16 is absolute over other sub-sections of Section 16 in as much as it begins with the phrase Notwithstanding anything contained in this section . All the conditions stipulated in section 16(2) are fulfilled by the applicant for which he is entitled to avail the input tax credit in the instant case. 2.6 Rules 59 and 60 substituted by 13th amendment of the CGST Rules, 2017 being sub-ordinate to the CGST / WBGST Act, 2017 did not restrict the seamless availment of input tax credit for any registered person. 2.7 Notification No. 82/2020 - Central Tax dated 10-11-2020 making 13th amendment to the CGST Rules, 2017 was effective from 01-01-2021 and so it could not res ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the GST Act. (ii) In the instant case, the applicant has fulfilled the conditions as specified under section 16(2)(a) and section 16(2)(b) of the GST Act as he has taken credit of ITC for invoices dated 01-01-2020, 01-02-2020 and 02-03-2020 in question in the month of January 20, February 20 and March 20 respectively for which the service were received by them in the month of December 19, January 20 and February 20 respectively. (iii) Further, the applicant has also fulfilled the condition specified under section 16(4) of the said act as credit of ITC has been taken in the month of January 20, February 20 and March 20 for the invoices dated 01-01-2020, 01-02-2020 and 02-03-2020 respectively i. e. before the due date of furnishing of their GST return under section 39 for the month of September following the end of financial year to which such invoices pertains. (iv) However, the supplier namely M/s Gayatri Projects Ltd has paid the GST amount involved in impugned invoices issued during the month of January 20, February 20 and March 20 (on which ITC has already been availed by the recipient in respective months) in November, 2020 as the supplier has filed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tled to the credit of any input tax in respect of any supply of goods or services or both to him unless, (a) he is in possession of a tax invoice or debit note issued by a supplier registered under this Act, or such other tax paying documents as may be prescribed; (b) he has received the goods or services or both. [ Explanation .- For the purposes of this clause, it shall be deemed that the registered person has received the goods or, as the case may be, services (i) where the goods are delivered by the supplier to a recipient or any other person on the direction of such registered person, whether acting as an agent or otherwise, before or during movement of goods, either by way of transfer of documents of title to goods or otherwise; (ii) where the services are provided by the supplier to any person on the direction of and on account of such registered person;] (c) subject to the provisions of [section 41 or section 43A], the tax charged in respect of such supply has been actually paid to the Government, either in cash or through utilisation of input tax credit admissible in respect of the said supply; and (d) he has furnished the return unde ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... such conditions and restrictions as may be prescribed and in the manner specified in section 49, sub-section (2) of section 16 which is a non-obstante provision specifically refers to the conditions where a registered person shall not be entitled to take the credit of input tax in respect of any supply of goods or services or both to him. Further, sub-section (3) and (4) of the said section also put restrictions towards entitlement of input tax credit under certain situations. 4.5 In the case in our hand, we find that the applicant has availed credit of input tax upon receipt of services from M/s Gayatri Projects Limited and has furnished the return under section 39 for the relevant tax periods. The applicant is also in possession of tax invoices issued by the supplier of services. So, the applicant has complied with the conditions for availing of input tax credit specified in clause (a), (b) and (d) of sub-section (2) of section 16 of the GST Act. 4.6 However, it is evident that while the applicant has availed input tax credit in the months of January 20, February 20 and March 20 respectively, the supplier has declared such outward supplies made by him in his respective FO ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... /2019 dated 18.11.2019 issued by the Commissioner, State Tax, West Bengal] wherein it has been clarified that The conditions and eligibility for the ITC that may be availed by the recipient shall continue to be governed as per the provisions of Chapter V of the CGST Act and the rules made there under. This being a new provision, the restriction is not imposed through the common portal and it is the responsibility of the taxpayer that credit is availed in terms of the said rule and therefore, the availment of restricted credit in terms of sub-rule (4) of rule 36 of CGST Rules shall be done on self-assessment basis by the tax payers. 4.11 It has been further clarified in the said circular that The balance ITC may be claimed by the taxpayer in any of the succeeding months provided details of requisite invoices are uploaded by the suppliers. 4.12 In the instant case, the applicant has availed of input tax credit in the months of Jan-2020, Feb-2020 and March-2020 against supplies received from M/s Gayatri Projects Limited and admittedly the details of the invoices in respect of such supplies have not been uploaded by the supplier during the said tax periods. The applicant ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hall be furnished with the cumulative adjustment of input tax credit for the said months in accordance with the condition above. . 4.17 Circular No. 142/12/2020-GST dated 09.10.2020 has been issued by Central Board of Indirect Taxes and Customs, GST Policy Wing [Corresponding West Bengal Trade Circular No. 09/2020 dated 13.10.2020] clarifying applicability of sub-rule (4) of rule 36 of the CGST Rules, 2017 in terms of the said proviso. Relevant portion of the circular is reproduced herein under: It is re-iterated that the clarifications issued earlier vide Circular No. 123/42/2019 GST dated 11.11.2019 shall still remain applicable, except for the cumulative application as prescribed in proviso to sub-rule (4) of rule 36 of the CGST Rules. Accordingly, all the taxpayers are advised to ascertain the details of invoices uploaded by their suppliers under sub-section (1) of section 37 of the CGST Act for the periods of February, March, April, May, June, July and August, 2020, till the due date of furnishing of the statement in FORM GSTR-1 for the month of September, 2020 as reflected in GSTR-2As. [Para 3.1 the circular] The excess ITC availed arising out of reconciliati ..... X X X X Extracts X X X X X X X X Extracts X X X X
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