Input Tax Credit

[vignesh VSACCOUNTOPRIVATELIMITED]

Sir. For the financial year 2018-2019 assessee failed to file GSTR 3B returns bur he has filed GSTR-1 and he has now filed GSTR-3B for all the pending months during Nov-2020 and claimed ITC, now AO is asking to Reverse the ITC bcs it is lapsed and cannot claim as date of Filing the said returns has ended. is there any binding section in favour of Assessee

[PAWAN KUMAR]

Dear sir,

For FY 2018-19, the due date of claiming the ITC is 20.10.2019 , the date of filing GSTR-3B for Sept 2019 or the date of filing annual return whichever is earlier. no such option is available for claim if this time has been over.

[KASTURI SETHI]

The department's stand is correct. I support the views of Sh.Pawan Kumar Ji.

[Chandani Nawalkha]

. The ITC is a substantive right and cannot be curtailed due to a procedural lapse i.e. non filing of GSTR-3B in the instant case. Matter is disputable but can be suitably contested.

[Ganeshan Kalyani]

I agree with the views of experts.

[CABIJENDERKUMAR BANSAL]

Respected Sir

The provisions of Section 16(2)C has got the overriding effect as it start with not withstanding it contains under this SECTION thus the matter is require reconsideration by the department when SECTION 41 also allows the provisional credit. Further denial on the GST PORTAL is against the principle of natural justice when there are contradictions in provisions.

[KASTURI SETHI]

Section 41 of CGST does not allow time-bar credit. In my view, here the term, 'provisional credit' does not convey such message which you have arrived at.

[Ganeshan Kalyani]

I agree with the views of Sri Kasturi Sir. The word provisionally in Sec. 41 does not entitles a person to take time barred credit. It only states that person can take credit into his electronic credit ledger provisionally.

[Alkesh Jani]

Shri

I agree with the views expressed by our experts. However, the querist may contest the case on the ground that return GSTR-3B is not return under Section 39 as per the High Court Judgement and due date of Annual return for the period 2018-19 is 31st December, 2020.

[KASTURI SETHI]

After retrospective amendment, GSTR 3B is a return w.e.f. 1.7.17. If the party decides to opt for litigation, they will have to challenge legal validity of retrospective amendment. So the destination may prove a pipe dream.

 

[Bhavika Chothani]

In this case the last date of filing of GSTR-3B of September 2019 is already passed so ITC cannot be claimed now

[PAWAN KUMAR]

Dear sir,

Section 41 CGST Act stipulates claim of itc which terms as provisional subject to restriction and conditions. it does not allow claim of itc on self assessment basis where the time of taking it has been lapsed. the logic behind this to ensure and meet the conditions of section 16 and matching concept of ITC in GSTR-2.

[Kashish Gupta]

Dear Vignesh,

Besides the views put forth by eminent experts, i would like to draw attention towards section 16(2)(d) of the Act. As per this condition, credit can be claimed once the return has been filed. Therefore, it apparently clarifies that credit is conditional upon filing of return under section 39.

Now coming to the aspect of time barredness, even if i keep section 16(4) aside, section 39(9) is still providing for the same. As per this sub-section, the time limit to correct any error or omission in the return is only upto the timelimit as provided by section 16(4) of the Act.

Now coming to the contention that GSTR-3B is not a return, which in my view is sustainable only for the period upto 10.11.2020, as on date the credit became barred by time for FY 2018-19. For the period before 10.11.2020, said credit has been contended to be not barred by time before various High Courts wherein notices have been issued to the Central Government and the final outcome is awaited. Therefore, it is my advise to take a strong legal advise for the input tax credit related to FY 2018-19 and proceed only if there is a strong case on facts.

Best Regards

Kashish Gupta

85108 06440