ITC ELEGIBILITY ONLY IF AVAILABLE GSTR-2A

[SAFETAB LIFESCIENCE]

Dear Experts,

We have received a letter from GST range seeking clariification for the variation between our GSTR-3B and GSTR-2A. Some of the suppliers have not uploaded their bills and every one aware that this difference is due to suppliers non uploading only. But we have pucca GST paid bills.

At this stage, we want to know whether we are eligible to take ITC only if it is displayed in 2A compulsorily and is it mandatory. What we can do if our party is not uploading their bills. Is there any rules or notification are there stating only and only we can take ITC if available in GSTR-2A only.

[KASTURI SETHI]

Uploading invoices by the supplier is not the basic condition. It is not mandatory. Section 16 of CGST Act does not talk of such condition. Also read the following:--

C.B.I. & C. Press Release No. 62/2018, dated 18-10-2018

4. It is clarified that the furnishing of outward details in FORM GSTR-1 by the corresponding supplier(s) and the facility to view the same in FORM GSTR-2A by the recipient is in the nature of taxpayer facilitation and does not impact the ability of the taxpayer to avail ITC on self-assessment basis in consonance with the provisions of section 16 of the Act. The apprehension that ITC can be availed only on the basis of reconciliation between FORM GSTR-2A and FORM GSTR-3B conducted before the due date for filing of return in FORM GSTR-3B for the month of September, 2018 is unfounded as the same exercise can be done thereafter also.

As per Section 155 of CGST Act, 2017 the burden of proof is cast upon the person who claims ITC.

As per Section 43 A (6) of CGST ACT both are jointly and severally liable to pay or to pay ITC.

The supplier is also statutorily bound to file returns under Section 39 wherein he is to mention details of all invoices.

[Ganeshan Kalyani]

The input tax credit taken by the buyer is on self assessment basis. There is no compulsion as of now to match the invoice appearing in GSTR-2A with the details uploaded by the supplier in his GSTR-1. However, as rightly said by Sri Kasturi Sir, the onus of claiming the credit is upon the buyer. Also, both buyer and supplier is jointly and severely responsible for the input tax credit in the sense that if GST is paid by the supplier and the details are uploaded in GST portal the credit becomes eligible to the buyer. The new return format is going to come from 01.04.2019 wherein the credit would be autopopulted in the return which is based on the invoice uploaded by the supplier. After trail month it will be made compulsory that only such credit which is populating in the return would be eligible for the buyer to claim.However, presently there is no such restriction of the buyer to claim credit only if it is appearing in his GSTR-2A.

[PAWAN KUMAR]

Dear Sir,

as per my view, since itc being claimed on self assessment basis, the condition prescribed in the section 16(1) should be complied with :

-GST should be paid by supplier - In this provisions, all output invoices must upload on Portal so as to correctly estimate the GST liability and paid taxes.

-GST return should be filed by supplier - As per this provision, return should be filed for the taxes paid.

The press note dated 18.10.2018 was issued to clarify the aspect that in trade it was being communicated that ITC if not reconciled with 2A and 3B, one cannot take ITC. The CBIC released the press note to clarify that even if reco not done, claim will not impact. you may claim itc subject to condition of section 16 which now prevails and exists. Even some of the trade has been issued notice that their respective supplier has not filed returns for certain period and also not paid the due GST.

[KASTURI SETHI]

Dear Querist, I stick to my views.

[Shyam Kedia]

Dear Kasturi sir,

Are you sure that if credits are not available in 2A but the recipient has invoice with him and has a proof that he has paid the considerations along with tax amount to the supplier, then the recipient can claim credit based in the invoice he is having? i ask it more firmly we need to file gst annual returns now before june and this plays a mojor role.

Also will the department be satisfied if the recipient furnishes all invoices with proof of payment to supplier in case any credit is not available in 2A?

Your reply will be appreciated.

Thanks in advance.

[KASTURI SETHI]

It is not in dispute that all the invoices are to be uploaded by the supplier in GSTR-1 on the basis of which ITC is reflected in GSTR-2A. You are to pursue your supplier to upload the invoices. The Common Portal System will allow ITC whichever is reflected in GSTR-2A.If the supplier does not upload the invoices in GSTR-1, the buyer is not at fault at all. The basic conditions of availment of ITC are :

1.Tax invoice

2.Tax paid character

3.Utilization of input/input services in the course of business and furtherance of business.

If you fulfill above conditions, your substantive right cannot be snatched. The buyer cannot suffer on account of lapse committed by the supplier. Recently there were decisions of various Courts in favour of the assessees on this very issue. The compliance with GST laws is to be preferred to Common Portal System. Relief is possible in two ways:-

1. Through litigation.

2. The Govt. should frame a law to enforce the supplier to upload invoices within a stipulated.

This problem is already in the notice of the GST Council. The new format of returns may solve this problem being faced by so many tax payers.

At present best option for you is to persuade your supplier to upload invoices so as to enable you to file Annual Return correctly. The last date of Annual Return is likely to be extended for the purpose of updation of GSTR-2A.

[KASTURI SETHI]

Delhi High Court issued notice to Union of India in reference to petition filed by Bharati Telemedia Ltd. on the issue that input tax credit cannot be denied to the recipient for default on the part of supplier. Section 16(2)(c) & (d) and Section 16(4) of CGST Act challenged. Next date of hearing : 18.9.2019