TaxTMI 
TaxTMI 
2021 (7) TMI 1214
X X X X Extracts X X X X
X X X X Extracts X X X X
....ax Structure. 2.2 On examination of refund claim filed by the appellant the adjudicating authority observed "Wrong ITC claim" and given remark that "ITC claim of Rs. 3,27,047/- with reference of invoices of M/s. Astha Trading Company does not appear admissible, since M/s. Astha Trading date of registration of cancellation is 5-12-2018 and in this regard issued Show Cause Notice Reference No. ZY0804200098382, dated 7-4-2020 in Form RFD-08 and directed the appellant to furnish reply to the notice within fifteen days from the date of service of the notice and also directed to appear on 15-4-2020. In reply of the said notice, the appellant filed their reply in Form GST RFD-09 through which they requested to "Out of claimed refund of Rs. 9,54,051/-, a sum of Rs. 6,27,004/- may be refunded to them. Further, intimated that written brief will be submitted later on by them. Thereafter, the adjudicating authority has sanctioned the refund amounting to Rs. 6,27,004/- vide Order No. ZS0804200155582, dated 9-4-2020 in Form RFD-06. 3. Being aggrieved with the impugned order, the appellant has filed the appeal on the following grounds which are summarized as under :- (1)&....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... of M/s. Astha Trading Company was cancelled with effect from 5-12-2018. (f) Further as per Sections 16(2)(e), 37, 38, 73 of the CGST Act, a genuine buyer who avails ITC for the amounts paid to his seller (both the invoice amount and the tax) will be denied credit with a reason that the seller has not remitted tax with the appropriate State/Central Government authorities and disclosed in his GSTR-1 Return. However in order to address such defaulters (sellers), the GST Council GST Rating scores from 1 to 10 will assist genuine buyers and to take action and giving caution to buyers, not to deal with such defaulters. Hence the deduction of refund of Rs. 3,27,047/- is illegal and deserves to be refunded. (2) That no liability can be fastened on the purchasing registered dealer on account of non-payment of tax by the selling registered dealer in the Treasury unless it is fraudulent or collusion or connivance with the registered selling dealer or its predecessors with the purchasing registered dealers are established. &nb....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ssed, in his return and such amount shall be credited on a provisional basis to his electronic credit ledger." Thus, to conclude, even if the vendor has not paid GST, the company should be allowed to avail credit (even provisional though) provided, the vendor has uploaded the invoice details which gets duly reflected in GSTR-2A report within the prescribed time limit. (5) Further as per Circular No. 59/33/2018-GST, dated 4-9-2018, the Government has clarified that if the credit is appearing in GSTR-2A, it is sufficient to process the claim of refund. The relevant extract of the Circular has been reproduced below :- In view of the difficulties being faced by the claimants of refund, it has been decided that the refund claim shall be accompanied by a print-out of FORM GSTR-2A of the claimant for the relevant period for which the refund is claimed. The proper officer shall rely upon FORM GSTR-2A as an evidence of the accountal of the supply by the corresponding supplier in relation to which the input tax credit has been availed by the claimant. It may be noted that there may be si....
X X X X Extracts X X X X
X X X X Extracts X X X X
....o the amount inadmissible Rs. 3,27,047/- and it has mentioned in remarks of RFD-08 that amount of claim in with reference of invoice of M/s. Astha Trading Company does not appear admissible, since M/s. Astha Trading Company date of registration of cancellation is 5-12-2018. In reference to the notice appellant filed their reply in RFD-09 in which he requested to out of total refund Rs. 6,27,004/- may be refunded to them and they will submit written brief later on. 8. On going through the above facts I find that the adjudicating authority has accordingly processed the refund application and sanctioned the refund amount Rs. 6,27,004/- under Section 54 of the CGST Act, 2017. Further, he also mentioned in the remark that assessee requested to refund the pending sum of Rs. 6,27,004/- hence RFD-06 is being issued, and in column of RFD-06 "Wrong ITC Claim" Rs. 3,27,047/- (State/UT Tax) has been entered by him. 9. In this context, I find that appellant has stated in appeal memo that due to the lockdown period he was under financial crisis accordingly he submitted their written intimation in Form of GST RFD-09 and RFD-06 was issued without providing him any personal hearing ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....tained in this section, no registered person shall be entitled to the credit of any input tax in respect of any supply of goods or services or both to him unless, - (a) he is in possession of a tax invoice or debit note issued by a supplier registered under this Act, or such other tax paying documents as may be prescribed; (b) he has received the goods or services or both. Explanation. - For the purposes of this clause, it shall be deemed that the registered person has received the goods or, as the case may be, services - (i) where the goods are delivered by the supplier to a recipient or any other person on the direction of such registered person, whether acting as an agent or otherwise, before or during movement of goods, either by way of transfer of documents of title to goods or otherwise; (ii) where the services are provided by the supplier to any person on the direction of and on account of such registered person. (c) subject to the provisions of sect....