Payment of GST u\s 16(2)C

[SANJEEV AGGARWAL]

One of my suppliers has filed GSTR-1 for month of May, 2021 duly uploading my invoices but has not filed 3B for the said period and hence not paid tax for that period and is absconding. My premises were inspected by DGGI in this matter. I was advised to reverse the input of said party and deposit GST Voluntarily vide DRC-03us 73 but i asked them since section 73 relates to mistakes & errors which was not the case, I am ready to deposit the GST u/s 116(2)C but there is no option of this section in DRC-03. I have even asked the Department to issue me DRC-13 but they are not issuing the same. How to deposit tax u/s 116(2)C ?

[KASTURI SETHI]

SH.SANJEEV AGGARWAL JI,

Have you asked for issuance of DRC-13 in writing to the department ?

[Shilpi Jain]

Whatever you pay please pay under protest and it is seen that DGGI is not continuing the investigation by issuing the show Cause Notice. Ensure that you seek for a notice. If not file a refund for the amount paid during investigation so that as a recipient you are not burdened with tax liability just because the department is unable to recover it from the supplier

[SANJEEV AGGARWAL]

As already stated, I was advised by my Tax Consultant to seek issuing of DRC- 13 from the department, but despite asking for multiple times, no response has been received. Here is the situation, Payment of supplier is on hold by me, i want to deposit balance payable to defaulting party to GST Department, have asked GST Deptt to issue me DRC-13 to enable me to pay to the department. But GST Deptt. is giving no response whereas unofficially asking me to reverse ITC without any of my mistake, error, collusion or evasion. On my part i wan't to deposit tax u/s 116(2)C & not under 73 or 74. Any remedy/solution kindly advise.

[KASTURI SETHI]

Dear Sh.Sanjeev Aggarwal Ji,

Read Section 79 of CGST Act thoroughly. There is proper procedure for issuance of DRC-13. DRC-13 is issued when demand has already been confirmed by way of Adjudication Order (Order-in-Original).Your case is still at investigation stage.

As per Section 155 of CGST Act.the burden of proof is cast upon a person who takes ITC.

At the same time, you cannot be held responsible for supplier's default. You are to prove your bona fides.

[SANJEEV AGGARWAL]

My conclusion is that at present there is no mechanism available to buyer to make payment of GST to Department u/s 116(2)C other than to reverse in his books. Voluntary payments via DRC 03 is not an option since that means to plead guilty without any wrong doing, error or unintentional mistake. If we reverse the credit once & supplier resurfaces, what is the option in hand of buyer as very soon pursuant to section 36(4) ITC is to be restricted to what is available in GSTR-2B & since supplier had already uploaded his invoices, buyer won't be able to reclaim ITC once he has reversed the same. Any comments\solution to this.

AI Summary

Payment under section 116(2C) blocked by lack of DRC-13 option; reverse ITC or pay under protest advised. Buyer cannot currently remit tax specifically under section 116(2C) because DRC-13 is issued only after demand confirmation by adjudication; DRC-03 remains the only practical instrument for voluntary payment during investigation. The recipient must establish bona fides under the burden of proof rule, seek written issuance of DRC-13 or a show-cause notice, consider reversing input tax credit if compelled, and, if paying voluntarily, do so under protest while preserving rights to seek refund or restoration of credit later.