Query related to order u/s 73

[YUWRAJ KOTHARI]

In a case where order u/s 73 has been passed wherein the + interest + Penalty is levied, some wrong credit of IGST is taken in the 1st Quarter of GST. This wrongful credit was utilised by mistake which was reversed at the time of GST Audit as per CA's, advise. Meanwhile every month GST liability as per GSTR-3B was paid/deposited which is reflected in cash Ledger. However this cash ledger amount remained to be debited towards GST dues. The accumulated balance was reversed / debited at the time of reversal of wrongful IGST credit: Against the order the RTP preferred appeal by paying 10% of tax dues.

Query is: 1. If there are no tax dues payable Whether Amnesty benefit can be availed.

2.10%. deposit amount paid whether can be claimed by way refund/ otherwise credit.                                                   

[KASTURI SETHI]

Q.No.1. If there are no tax dues payable Whether Amnesty benefit can be availed. ?

Reply : YES.

Q. No.2.10%. deposit amount paid whether can be claimed by way refund/ otherwise credit.?

Reply : YES. Pre-deposit is an amount and NOT tax. Pre-deposit amount is meant for right of filing an appeal. If the appeal is withdrawn, such amount can be claimed as refund. Hence the Amnesty Scheme is not a hurdle in getting refund of pre-deposit amount. Pre-deposit is out of the scope of 'tax'.

[KASTURI SETHI]

Full demanded tax must have been paid on or before the notified  date.

[Shilpi Jain]

As per recent instruction, such notice is eligible for the amnesty scheme.

Further, note that in case of a mere penalty notice (other than s. 129), no pre-deposit is required.

[YUWRAJ KOTHARI]

Shri Kasturi Sir, 

To clarify here: Tax dues shall be modified to NIL, by Appeal authority (AA) considering the reversal at later stage. And as per AA deposit amount will be adjusted against interest dues. Ultimately against such order whether Amnesty benefit can be taken?

Thanking you for quick replies.

AI Summary

Amnesty eligibility after tax demand reversal may be available and pre-deposit payments can be refunded or adjusted. A recovery order imposing tax, interest and penalty followed reversal of wrongful IGST credit; the appellant paid a pre-deposit to appeal. Forum responses state amnesty may be available if the full demanded tax has been paid or the appeal reduces tax to nil, and that the pre-deposit is an amount distinct from tax and can be refunded or adjusted, including where the appeal is withdrawn or adjustment against interest is directed.