GSTR 3B─Reversal of ITC─Late filing of Return

One of the condition for avillment of ITC u/s 26(2), CGST Act, 2017 is “furnishing of return u/s 39”. 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 all the sub-sections of section 16, per decision of the cases  in Central Bank of India v. State of Kerala 2009 (2) TMI 451 - SUPREME COURT & Synergy Fertichem Pvt. Ltd. v. State of Gujarat & Ors. 2020 (2) TMI 1159 - GUJARAT HIGH COURT

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 per SC Judgment in Eicher Motors Ltd. v. Union of India 1999 (1) TMI 34 - SUPREME COURT, can not be withdrawn in the absence of a clear legal prohibition, by framing rules, which are procedural in nature and can not be construed as a mandatory provisions per decisions of the case in  Adfert Technologies Pvt. Ltd. v. Union of India (P&H) [2019 (11) TMI 282 - PUNJAB AND HARYANA HIGH COURT], which has been endosed by the SC in UNION OF INDIA & ORS. VERSUS ADFERT TECHNOLOGIES PVT. LTD. [2020 (3) TMI 188 - SC ORDER]. Moreiver, 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 per decision of the case in JAKAP METIND PVT LTD. VERSUS UNION OF INDIA THROUGH THE SECRETARY AND 6 OTHER (S) [2019 (11) TMI 710 - GUJARAT HIGH COURT]

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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