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TMI Blog2024 (5) TMI 1183X X X X Extracts X X X X X X X X Extracts X X X X ..... he GST regime, the petitioner was not liable to pay service tax. However, after the GST Act came into force with effect from 01.07.2017, the petitioner started filing monthly returns in Forms GSTR-1 and GSTR-3B, from October 2017 and GSTR-9 from March 2018. During July, August and September 2017, the petitioner had received 'inward supplies' from BSNL, and GST was collected. According to the petitioner, the petitioner had effected 'outward supplies' to distributors attracting 'output tax' which had not been disclosed in GSTR-1 and GSTR-3B returns from 09/2017 to 03/2018. 2.1 It is further submitted that, at that time, it was the initial period of rolling out of the GST and Form GSTR-2A, which was auto-populated based on data uploaded by dealers through GSTR-1, was not reflecting the correct input credit available to a recipient of supplies and even module relating to Form GSTR-2A was not available. During the audit of accounts, it was noticed that the petitioner had omitted to report details of 'inward' and 'outward' supplies for July to September 2017, and therefore, these values were shown in its annual return for 2017-18 in GSTR-9 indicating total 'input credit' and 'output tax ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... purported to be issued under Section 168A of the CGST Act, are beyond the powers conferred on the 2nd respondent under Section 168A of the Act. By taking aid of the aforesaid notifications, the impugned order in Ext. P1 could not have been passed beyond three years of the limitation prescribed under sub-section (9) of Section 73 of the CGST/SGST Act. The last date for filing annual returns for 2017-18 was 07.02.2023. 3.2 It is further submitted that the force majeure was not present for extending the time for completion of proceedings in passing the assessment order under sub-section (9) of Section 73. Thus, the impugned notification is bad in law and is ultra vires the provisions of Section 168A of the CGST/SGST Act. 3.3 Learned Counsel for the petitioner furthermore submits that the extension of the time limit for completing the actions can only be notified where such actions cannot be completed due to force majeure. The expression 'force majeure' has been defined in the Explanation of Section 168A, which means war, epidemic, flood, drought, fire, cyclone, earthquake, or any other calamity caused by nature or otherwise affecting the implementation of any of the provisions of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that he has made payment for the amount towards the value of supply, along with tax payable thereon, to the supplier. Besides, the proper officer shall also check whether any reversal of input tax credit is required to be made in accordance with section 17 or section 18 of CGST Act and also whether the said input tax credit has been availed within the time period specified under sub-section (4) of section 16 of CGST Act. 4.1.1 In case, where difference between the ITC claimed in FORM GSTR-3B and that available in FORM GSTR-2A of the registered person in respect of a supplier for the said financial year exceeds Rs 5 lakh, the proper officer shall ask the registered person to produce a certificate for the concerned supplier from the Chartered Accountant (CA) or the Cost Accountant (CMA), certifying that supplies in respect of the said invoices of supplier have actually been made by the supplier to the said registered person and the tax on such supplies has been paid by the said supplier in his return in FORM GSTR-3B. Certificates issued by CA or CMA shall contain UDIN. UDIN of the certificate issued by CAs can be verified from ICAI website https://udin.icai.org/search-udin and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s to or within three years from the date of erroneous refund." 6. Thus, from reading the aforesaid provision, it is evident that the order under sub-section (9) of Section 73 is to be issued by the proper officer within a period of three years from the due date for furnishing the annual returns for the financial year. An order passed beyond the period of three years in respect of the financial year from the due date of filing the annual return would become time-barred and without jurisdiction. Section 168A empowers the Government to extend the time limit in special circumstances for actions which could not be completed due to force majeure. This power is overriding power, and sub-section (1) of Section 168A has a non-obstante clause. 6.1 Section 168A on reproduction reads as under: "Sec. 168A: Power of Government to extend time limit in special circumstances: [1]: Notwithstanding anything contained in this Act, the Government may on the recommendations of the Council, by notification, extend the time limit specified in, or prescribed or notified under, this Act in respect of actions which cannot be completed or complied with due to force majeure. [2]: The power to issue ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e discretion of the Executive, which has been taken based on the recommendation of the GST Council. I do not find that the notifications impugned in the writ petition in Exts. P7 and P8 are ultra vires the provisions of Section 168A of the CGST/SGST Act. The Government is well within the power to extend the limitation for completing the proceedings and taking action under Section 73 of the Act by issuing notification under Section 168A of the GST Act if there is force majeure. COVID-19 was a force majeure, and taking into account the various factors, the time limit has been extended. Therefore, I find no substance in the challenge to the said notifications, and the writ petition is dismissed to that extent. 8.1 As the Government itself has come out with Circular No. 183/15/2022-GST dated 27.12.2022 to deal with the difference in Input Tax Credit availed in Form GSTR-3B as compared to that detailed in Form GSTR-2A for the Financial Year 2017-18 and 2018-19, I find that in the case of the petitioner also the benefit of the said Circular should be given and the assessment order to be passed afresh. Thus, the Assessment Order is set aside, and the matter is remanded back to the Assess ..... 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