Reversal of ITC─Late filing of Return─Applicability of section 16(4) CGST Act, 2017

Section 16(2)(d) , CGST Act, 2017 starts with notwithstanding clause and stipulates “furnishing of return u/s 39 for entitlement of ITC”. This clause nowhere mentions “timely submission of returns and/or debarring rectification of any return belatedly, for being entitled to avail ITC. The “notwithstanding clause”, in the section 16(2) means that it supersedes[1] all the sub-sections of section 16.

As such, in our view, if a registered person has furnished returns &/or rectified any return belatedly, he is entitled to ITC irrespective of section 16(4)CGST Act, 2017 and his vested right[2] can not be withdrawn in the absence of a clear legal prohibition, by framing rules.

Rules are procedural in nature and can not be construed as a mandatory provisions[3]. The Govt. has no legal authority to retain the amount of credit to which the respondent in the present case is entitled to and retention of it by the Govt., cannot be sustained, being violative of Article 265 of the Constitution of India[4].

In view of the above, in our view, ITC is not required to be reversed.

CA Om Prakash Jain

Jaipur

9414300730

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