Sec 16(4) Reversal of ITC when 3B is filed belatedly

[G srikanth]

As we are aware, the Gujarat High Court in AAP judgement has held that (a). Sec 16(4) refers to due date of filing return u/s 39; (b). The form to be filed u/s 39 is GSTR 3 as prescribed in Rule 61; and (c) in so far as GSTR 3 has not been enforced, even if one files the GSTR 3B beyond the due date of filing the return for Sept following the end of the financial year, the ITCs can be taken.

Subsequently, Rule 61 was amended to replace GSTR 3B for GSTR 3 w.e.f. 1/1/21.

My question is whether the GUJARAT HIGH COURT judgement holds the forte till rule 61 was amended. For eg., if Mar 20 return was filed in Nov 20, can we still quote the Gujarat high court judgement to utilise the ITC?

[KASTURI SETHI]

Mere filing of return with a delayed fee will not act as a springboard for claiming ITC ----High Court Andhra Pradesh reported as . Order dated 18.7.23  in the case of Thirumalakonda  Plywoods Vs. A.C. State Tax - 2023 (7) TMI 1226.

[RAKESH R]

Dear Friends

With due respect to all your comments and replies, I wish to say that the problem / shut down faced by industry due to COVID 19 pandemic during the said period.  Further, when Government has extended the due date for completion of assessment orders for 2017-18, 2018-19 and 2019-20 using the powers vested under Section 168A of the CGST Act taking the COVID 19 as a 'force majeure' when the Department officers have three years time to complete the assessment.  COVID 19 has not only the Department Officers but also the business community.  When Government decides to give relief to Tax Administrators to extend time for passing orders on litigtion why not the same Government should extend the relief to assessees on limitation for the financial years 2017-18 to 2019-20.  Even appeals are allowed to file by extending the limitation period.  Hence, my view is ' TO GIVE ROOM FOR EASE OF DOING BUSINESS', the Government should come out with some relief package to the industry as LOSS OF ITC has a great impact on the financial issues of the industries.

S. GOKARNESAN

ADVOCATE

AI Summary

Restriction on Input Tax Credit availability when returns are filed late clarified, amid rule amendment and pending challenges.
Section 16(4) imposes a time limit for availing Input Tax Credit tied to the due date for filing the statutory return under section 39. The Gujarat High Court had allowed ITC where a belated interim return form was filed, but that interpretation was later reversed by a higher appellate decision. Subsequent amendment to the procedural rule replacing the interim return form raises questions about application to prior periods, while pending challenges and some high court rulings maintain a strict temporal bar and reject delayed filing with fee as curing the limitation.