PREVIOUS GST RETURN FILE NEXT YEAR MONTH OF SEPTEMBER AFTER DUE DATE

[santosh yadav]

Dear professional,

If the seller does not file the GST return of the previous year by the due date of September of the following year, can we claim that input tax as per 36(4) or not?

Suppose we have total input tax in book 500000 and in 2B 497000 now we take input tax as per 36(4) then we can take 521850 while return of 3000 is filed after september next year or not filed go

[Shilpi Jain]

The provisions are not very clear in this regard. However, as per existing provisions it can be availed since there is no time limit mentined for the entry to appear in 2A.

Though this could be disputed by the department

Also the 5% cushion given is only w.r.t. eligible credit.

[Shilpi Jain]

you could also have a look at the article in the below link

https://www.taxtmi.com/article/detailed?id=9746

[KASTURI SETHI]

Sh.Santosh Yadav Ji,

In short, answer to your query is in the negative. Rule 36 (4) talks of return under Section 37 (1) filed by the supplier but invoices missed (not uploaded) by him (supplier).Hence answer to your query is NO.

[Shilpi Jain]

However what you could do is avail the credit and reverse it under protest and make an intimation to the department. In case there is any judgement in your favour later you can avail the credit.

Important is unless you avail it by 20th October 21 you will not be able to avail it later since the time limit under the law would lapse

[KASTURI SETHI]

I concur with the views expressed at serial no.4 by Madam Shilpi Jain. This strategy evolved by Madam Shilpi Jain is very much in the letter and spirit of GST laws to a T.

[Ganeshan Kalyani]

You may not avail the credit and prefer to recover the tax component from your supplier as he has not filed the return furnishing your invoice and made you to pay extra tax. You will comply law by doing so.

[Shilpi Jain]

The view given by Mr. Ganesan can be adopted if it is feasible. This will ensure GST compliance by all, suppliers and customers.

[KASTURI SETHI]

The best, the safest, litigation-free and tension-free recourse/way-out is to get the return filed persuasively, cordially and amicably from the supplier. Ultimately, the supplier has to file GST returns. The supplier cannot go scot-free, if returns not filed.

AI Summary

Input tax credit rule 36(4): entitlement is uncertain when supplier fails to file; consider reversal or supplier recovery. Rule 36(4) addresses invoices reported in the supplier's return and the 5% cushion applies only to eligible credit; therefore entitlement to input tax credit where the supplier has not filed the return is uncertain and may be disputed. Practical options are to await supplier filing, recover tax from the supplier, or provisionally claim and immediately reverse the credit under protest while observing statutory time limits.