Time limit for claiming ITC under RCM

[ROHIT GOEL]

Dear Sir,

One of our clients had paid legal fees to advocates during FY 2019-20 but excluded to deposit RCM on same. On being pointed out during GST Audit, the client has deposited the same with interest however he maintains that he is eligible to claim ITC on the same in GSTR-3B of Mar 2021 i.e. month of deposit.

The basis for same has been stated to be that as per section 31(3)(f), he is liable to self-invoice for RCM supplies from URD persons. Even though the time of supply provisions clearly mandate issue of invoice within 30 days, they do not impose upper limit. As such, in opinion of client he has self-invoiced in March 2021 and as such his claim of ITC is within time as per section 16(4) as same only restricts ITC to Sep of next year from the year in which invoice is issued.

However, in our opinion, same would be contrary to intention of law and ITC would be inadmissible u/s 16(4). What is the view of the experts regarding the same?

[ABHISHEK TRIPATHI]

Dear KS Sir,

Indeed, ITC should be allowed. I am also fully aware that issuance of late invoice/debit note and claiming ITC on them will be next E-way Bill for department. After audits will see lot of bonafide error of issuing debit note later and claiming ITC on them etc. etc.

This will further lead to duty paying under protest at pre-SCN stage and claiming ITC on them. [As under protest isn't a thing in this GST regime, though concept should be borrowed from CE].

Claiming such ITC will be extremely contentious. Huge impact on the industry though hardly discussed.

[KASTURI SETHI]

Sh.Abhishek Tripathi Sir, Delay in issuance of invoice is a separate issue. It cannot be intermingled with eligibility criteria for availing ITC. Here invoice and challan both are mandatory. Under RCM invoice is incomplete without challan and vice versa. If ITC is availed in this scenario, SCN is most likely to be issued. Chances of winning the case by the tax payers are very very bright. The party must be prepared to face litigation. Regarding the provision of 'under protest' as per FAQ, there is no provision in GST regime. I am of the view that saving Section 174 covers the rule of under protest. If we unfold the layers of Central Excise Rules, 1944, CE Rules 2002,b Central Excise Act and Service Tax Rules (some Central Excise Sections were made applicable to Service Tax laws) and read with language of earlier Saving Sections with Saving Section 174 of CGST Act, you will find that the same language has been carried forward in CGST Act. Hence it (under protest) is covered.

[Prakash and Thiagarajan]

Dear Sir,

Please also look at C.B.I. & C. Press Release Nos. 105 & 106/2019, dated 3-7-2019 para "g" in the context of Annual return where credit of RCM of 17-18 paid and availed in 18-19 is discussed.

[Ganeshan Kalyani]

Sir, in my view there is no time limit to raise self invoice. So if the self invoice is raised in Mar 21 then till the month of Sept 21 the ITC can be claimed. Sec 31(2) is applicable only to the supplier of service. Sub-section (3)(f) of sect 31 only prescribes the person responsible for raising self invoice but not the time limit.

Sec.16(4) provides for time limit for claiming ITC based on any invoice and debit note. Any invoice includes self invoice. So if self invoice is dated Mar 21 then ITC can be claimed till Sept 21 as stated above.

[KASTURI SETHI]

I am thankful to Sh.Ganeshan Kalyani Ji for throwing more light on the complicated issue.

[KASTURI SETHI]

Although a press release has no statutory force, yet it is helpful for the assessees inasmuch as it reflects Govt.s inclination.

[Alkesh Jani]

Dear All Experts,

If you can include insight on the "mechanical" (procedural) Section and charging Section and Whether, to claim ITC is procedural Section? and also if order is passed or in terms of Section 73 before issuance of SCN, ITC is available or not? this discussion would be worth desktop saving.

Thanks

With due regards

[ROHIT GOEL]

Dear Experts,

Many thanks for your responses. I can see a very healthy discussion on a seemingly complicated issue has taken place in this case.

I believe that non allowance of ITC would be a negative deterrent and would encourage non compliance among assessees even more so when GST is going to self assessment mode from next year with abolition of GST Audit.

With reference to legal provisions, I believe there is certainly ambiguity in the provisions of law in section 16(4). Even though it refers to invoice but it also refers to period to which invoice relates to and not date of invoice. Therefore, department may take a view that though self invoice was issued in Mar 21 but it relates to period of FY 2019-20. As such, it appears that litigation may arise in future in this regard.

Further, regarding clarification given in CBIC Circular, it furthers add to confusion by mentioning that ITC on RCM is available when paid but does not go into situation vis-a-vis section 16(4).

However, it is hoped that clarification in this regard comes soon as it is certain to become contentious with rising compliance burden.

[KASTURI SETHI]

SH.ROHIT GOEL Ji,

I concur with your views and I further suggest that a person who can afford litigation and is equipped with moral courage must fight this issue inasmuch as issuance of SCN is certain. But such case will be decided in the interest of tax payers. It is my observation based on my interpretation and analysis.

If your voice reaches CBIC and clarification is issued, that will save the aaseessees' time and money. Govt.'s time will also be saved. So a clarification must be issued.

[Brijesh Thakar]

It is very interesting discussion. As per section 16(4),

A registered person shall not be entitled to take input tax credit in respect of any invoice or debit note for supply of goods or services or both after the due date of furnishing of the return under section 39 for the month of September following the end of financial year to which such invoice or invoice relating to such debit note pertains or furnishing of the relevant annual return, whichever is earlier.

Here argument given by most of the experts is that there is no time limit given for issuance of self invoice under section 31(3) (f). In the given case, time of supply as per section 13(3) shall be clearly in FY 2019-20. The only question that can create doubt in our mind in taking ITC under section 16(4) is merely by issuing invoice in march 2021, can we say that the invoice pertain to FY 2020-21 and not to FY 2019-20 though the payment is made in FY 2019-20 to supplier and TOS is also in FY 2019-20 ?

This definitely cannot be the intention of law.

[KASTURI SETHI]

Dear Sir,

Q. The only question that can create doubt in our mind in taking ITC under section 16(4) is merely by issuing invoice in march 2021, can we say that the invoice pertain to FY 2020-21 and not to FY 2019-20 though the payment is made in FY 2019-20 to supplier and TOS is also in FY 2019-20 ?

Are you hinting towards,' Service receiver under RCM is a deemed service provider'. ?

[Brijesh Thakar]

Dear sir,

It is difficult to deem anything unless deeming fiction is specifically created in law. However, my only concern is section 16(4) speaks about the financial year to which the invoice pertains. They have not mentioned the words " Financial year in which invoice is issued ". As there is no time limit for issance of self invoice the invoice may not become pertaining to any period in which it is issued. Assuming that RCM for fy 17-18 is paid in fy 2023-24 and invoice issued on 31-3-24. In this case invoice date may be 31-3-24 but it pertains to fy 2017-18. By the logic of no time limit for issuance of self invoice will mean no time limit for taking ITC. This seems to be doing something indirectly which cannot be done directly and as per my opinion will find it difficult to sustain in court of law.

[SAURABH DIXIT]

A fiscal statute has to be read as it is written. There is no room for intendment. Plain and simple language has to be read and interpreted as such, unless it leads to absurdity. RCM or forward charge, irrespective of "year" to which it pertains, if GST is paid thereon and tax invoice raised "dated" current financial year, ITC should be permissible under Section 16(4). the term "financial year to which such invoice or debit note pertains" on the face of it, means date of invoice/ DN which falls during 2021-22 and in which case, ITC thereon can be availed till fiing return for Sept'22.

Late raising invoice may constitute violation of GST Act/Rules, and attract penalty. In absence of fraud, suppression with intent to evade tax, there is no specific provision to deny ITC and it should otherwise be held eligible subject to other compliance (refer Dai Ichi Karkaria 1999 (8) TMI 920 - SUPREME COURT). Looking at this differently, if Govt is compensated for late payment of tax by interest anyway, why would legislature deny ITC to recipient/own self under RCM? The cause of deterrence or ensuring timely compliance is anyway furthered by interest (compensatory) and penalty (penal) action under law.

The present language of Section 16(4) must be read as such, and linking it to year to which "transaction pertains" instead of year to which "Invoice/DN pertains" will rather lead to absurd results. DN raised after 3 years based on price variation clause, will otherwise result in ITC denial, which in fact is not intended under law.

[Mallikarjuna Gupta]

Though there is no time limit for issue of debit note, here the taxpayer has to isdue self invoice and for that time of supply provisions will kick and if there is a delay on such invoice, interest is also required to be paid.

Coming to the input tax credit, i am taking a conservative view that since invoice is issued after the lapse of availing ITC, the taxpayer is ineligible to avail ITC. If any one wants to avail they have to consider the following after doing a cost benifit analysis

a) amount of ITC to be availed

b) interest amount being discharged

c) in case if ITC is availed, the cost of interest to be reversed along with the penalty if any applicable.

Technically speaking the provisions of tax invoice are applicable for self invoice also.

[KASTURI SETHI]

Sh.Mallikarjuna Gupta Ji,

After going through replies of all the experts, I find your reply perfect in letter and spirit of CGST Act. You have really echoed my views. I fully agree with your logic and reasoning.

[JSW CEMENTLIMITED]

Sir,

I am posting my view in this case as under:

Section 16(4) states as under:

(4) A registered person shall not be entitled to take input tax credit in respect of any invoice or debit note for supply of goods or services or both after the due date of furnishing of the return under section 39 for the month of September following the end of financial year to which such invoice or 4[****] debit note pertains or furnishing of the relevant annual return, whichever is earlier.

In this case, when the section is talking about the invoice or debit notes, it means Invoice and debit note issued for supply of goods and or services or both. As such the first part of the section says, "in respect of any invoice or debit note for supply of goods or service or both" and when it states"after the date of furnishing of the return under section 39 for the month of September following the end of financial year to which such invoice or debit note pertains", it means the financial year in which such invoice or debit note has been issued.

I mean, invoice or debit notes which are issued that shall be towards supply of goods or service or both and in this context the section states "A registered person shall not be entitled to take input tax credit in respect of any invoice or debit note for supply of goods or services or both"

The Press release also support this understanding, the department would definitely look into this section keeping in mind how to find a fault and issue a SCN to complete their formalities of audit. In my view, ITC is restricted on a invoice or debit notes issued in any financial year upto the date of filing of September Months return following the financial year in which such invoice or debit note has been issued.

It is hardly seen that a departmental officer is so prudent to interprete the law in the manner in which it is laid. In case, an Assessee missed out to pay taxes under RCM in any financial year and the issue is bonafide then law itself has made a provision that the Assessee should pay interest on such taxes which should be the punishment for the Assessee for the mistakes or non-compliance done. In most of the Bonafide cases, the higher courts has waived Penalty demanded by the department. In case, penalty is also accepted by the court to be levied on any Assessee, it proves that there was a malafide intention on the part of Assessee to evade payment of taxes, and in such case, ITC would not be allowed.

SCNs are only treated as allegation levied and unless the allegations are proved, an Assessee cannot be said to be violating any of the provisions of law. This is why after a SCN is issued, Law has provisions that Assessee can fight such allegations.

Thanks

[Rajan Atrawalkar]

As per section 16(1), every registered dealer will be entitled to take credit of input tax charged on any supply of goods or services. The words used are “Charged” and not chargable.

section 16 (4) provides for taking of Input Tax Credit before furnishing of the return under section 39 for the month of September following the end of financial year to which such invoice or debit note pertains of furnishing of the relevant annual return whichever is earlier.

The invoice for Reverse charge in which the tax is Charged is under section 31 (3)(f) “…shall issue an invoice on the date of receipt of Goods or services or both.”

In the given situation the self-generated invoice is not generated in the previous year, on the receipt of the service, but generated now, in the current month of the year.

It will be perfectly OK to claim ITC in the current period.

You may be saddled with general penalty for such belated issue of Invoice. You can defend the penalty by saying it as is revenue neutral. Also, you have deposited the tax with interest will be sufficient compliance for not levying the penalty.

[Amit Agrawal]

I believe that Circular No. 160/16/2021-GST dated 20.09.2021 makes it very clear that for availing ITC on and after 01.01.2021 against 'debit note', "date" of debit note (irrespective of date of invoice) will be relevant factor for determining time-limits to avail ITC u/s 16 (4).

[Amit Agrawal]

So, even if it is held that "tax-invoice u/s 31 includes self-invoice prescribed under 31 (3) (f)", then the tax-payer can always issue 'debit note' as 'deemed service provider" (which includes supplementary invoice) now, pay pending taxes under RCM (against such debit note) now and then, avail ITC against such debit note.

[Amit Agrawal]

Though I believe that query is now settled in favor of assessee wanting to avail subject ITC (at-least on or after 01.01.2021), I am putting my views here purely from point of brainstorming with fellow professionals (& hence, same should not be construed as professional advice or suggestion in any way):

And my humble submissions are as follows:

1. Tax-invoice referred to in section 31 of CGST Act, 2017 does not include the self-invoice prescribed under section 31 (3) (f).

2. Section 16 (4) deals with time-limit in taking input tax credit in respect of any invoice or debit note.

3. As per Section 2 (66), "invoice” or “tax invoice” means the tax invoice referred to in section 31.

4. Even though heading of Section 31 is 'Tax Invoice', the word tax-invoice is used thereunder for sub-sections (1), (2), 3 (b) & 3 (c). Only Section 31 (3) (f) uses the word 'invoice' and not 'tax-invoice'. And this difference is unique & its reasons needs to be understood because in all earlier quoted sub-sections, the word used in Section 31 is 'tax-invoice'.

5. The words - which are defined in a particular statute - needs to be given same meaning while interpreting any provisions of same statute. The word 'invoice' is defined as above u/s 2 (66) and same meaning must be given while interpreting the word 'invoice' u/s 16 (4) (even if & when is preceded by the word 'any'). So, 'any invoice' referred in above-said section 16 (4) can only mean "the tax invoice referred to in section 31"

6. As 'the tax invoice referred to in section 31' does not include 'invoice referred under section 31 (3) (f)', I would argue that there was never any time-limit prescribed u/s 16 (4) for availing ITC against 'invoice referred under section 31 (3) (f)'.

This is more from point of view of dealing with such cases where ITC is availed prior to 01.01.2021.

As said at the beginning, I am putting my views here purely from point of brainstorming with fellow professionals (& hence, same should not be construed as professional advice or suggestion in any way).

AI Summary

Input tax credit time limits under reverse charge may be contested when self invoice is issued late, risking denial and dispute.
Whether a belated self invoice or debit note issued by a recipient under reverse charge permits claiming input tax credit turns on the interaction between the requirement to self invoice for certain unregistered supplies, the time of supply rules and the limitation in the entitlement provision which disallows credit after the return due for September following the financial year to which the invoice or debit note "pertains." Experts disagree whether "pertains to" refers to the period of supply or to the invoice/debit note date, and practical considerations include payment of tax with interest, possible penalties, and litigation risk, with post amendment treatment of debit notes reducing but not eliminating uncertainty.