TaxTMI 
TaxTMI 
2025 (1) TMI 1418
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....n to file a revised GSTR-3B for the months from July 2017 to November 2017. 2. The said writ petition was dismissed as infructuous in the light of the order dated 30.09.2020 impugned herein. Relevant portion of the impugned order reads as under:- "Please take notice that the letter received in the reference 1st cited has been examined in detail and inform you that there is no provision to file revised return under the TN GST Act/CGST Act, 2017. Therefore, your request to rectify the returns in GSTR-3B for the period from July 2017 to November 2017 is not capable of compliance." 3. The brief background of the case is that the petitioner was an assessee under the provisions of the Finance Act, 1994 and had reportedly accumulated Input Tax Credit (ITC) for a sum of Rs. 82,91,19,712/-. The petitioner had managed to transition the ITC of Rs. 74,61,65,427/- out of Rs. 82,91,19,712/-, after collating all the necessary informations under the previous regime for the purpose of Section 140 of the CGST Act, 2017. The Form Tran-I itself was electronically enabled by the Central Board of Indirect Taxes sometime during last week of September 2017 on 25.08.2017 to facilitate to tra....
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....96,78,402/- partially in cash. It is submitted that the balance liability was discharged by utilizing the accumulated ITC which had accrued on the procurement of goods and services from 01.07.2017 onwards. 10. The month wise details of the returns filed during the period from July 2017 to November 2017 showing the tax liability and payments through cash ledger and credit ledger are given below: Month Total Value of Supply Total Tax Paid Tax paid in Electronic Ledger Tax paid in Cash Ledger Transitional Credit admissible July 2017 Rs. 6,25,74,28,719/- Rs. 1,13,15,86,524/- Rs. 55,36,96,927/- Rs. 57,78,89,597/- Rs. 82,91,19,712/- August 2017 Rs. 21,90,39,340/- Rs.3,58,91,188/- Rs. 3,58,91,188/- - - September 2017 Rs. 2,91,06,42,002/- Rs. 44,64,74,670/- Rs. 44,64,74,670/- - - October 2017 Rs. 2,77,38,60,969/- Rs. 45,65,98,625/- Rs. 37,77,69,004/- Rs. 7,88,29,621/- - November 2017 Rs. 5,49,94,42,414/- Rs. 99,49,30,557/- Rs. 78,19,71,373/- Rs. 21,29,59,184/- - Total Rs. 17,66,04,13,444/- Rs. 3,06,54,81,564/- Rs. 2,19,58,03,162/- Rs. 86,96,78,402/- Rs. 82,91,19,....
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.... the taxes could be paid by utlizing the ITC which they insisted they could not avail solely on account of non-operationalization of Form GSTR-2A. 18. The decision rendered in the case of Bharti Airtel cited supra is distinguishable on the following aspects: Sl.No. Facts in the case of Bharti Airtel Facts in the present matter a. Assessee had opted to remit tax using cash instead of ITC, and then sought amendment of Form GSTR-3B. The Assessee claimed that had the matching system between GSTR-1 and GSTR-2A been made operational, the petitioner would have been able to avail ITC and would have been able to utilize said ITC to remit GST liability. The petitioner was prevented from transiting the credit from the erstwhile regime to the GST regime as Form GST TRAN-01 was not made operational at the introduction of the GST regime. The petitioner remitted the applicable GST in cash in the absence of any alternative. b. The issue under dispute was relating to output tax liability paid out of cash on account of non operability of Form GSTR-2B and did not deal with transitioned credits. This case pertains to transitional credit, which the petition....
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....s in first putting a workable system in place, before implementing the GST regime, reflects poorly on the concerned that the respondents have shown to the difficulties that the trade faced throughout the length and breadth of the country. 22. The learned counsel for the petitioner submits that the facts are identical in all four corners as there also ITC was the transitional credit of the said assessee during December 2017. In this case also, the petitioner has transitioned the entire credit of Rs. 82,91,19,712/- during the month of December i.e., 27.12.2017. 23. It is submitted that during the aforesaid period, the tax liability that was discharged by the petitioner in cash was Rs. 86,96,78,402/-. Therefore, to that extent of Rs. 74,61,65,427/- ought to be refunded back if not [7,88,29,621 + 21,29,59,184]. 24. The learned counsel for the petitioner also submits that the appeal against the decision of the Division Bench of the Delhi High Court in the above case was also dismissed by the Hon'ble Supreme Court on 15.02.2021 in SLP (Civil) Diary No. 16998/2020. 25. He further submits that the petitioner will debit the corresponding amount of Rs. 74,61,65,527/- or Rs. 5....
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....to discharge output tax liability in cash, that is a matter of an option exercised by the registered person and even tax authorities have no role to play. 30. It is further submitted that the petitioner could have opted for refund of ITC if any paid on or before the appointed date, of any amount of ITC interest or any other amount paid under the existing law, provided the amount was not carried forward under the GST Act. 31. It is submitted that since the amount was carried forward and transitioned, question of refund of the aforesaid amount was not available to the petitioner. 32. The learned counsel also reiterated the submission of the learned Senior Standing Counsel for respondents 1, 2, 5 & 7 and placed reliance on the decision of the Hon'ble Supreme Court in Bharti Airtel Ltd. Vs. Union of India & Ors. reported in 2020 (38) G.S.T.L 145 (Del). 33. By way of rejoinder, the learned counsel for the respondent would submit that the decision is no in authority for the jurisdiction that has been canvassed in this case. It is submitted that the said decision was rendered in the context of the delay on the part of the assessee to avail ITC. Since the assessee purported....
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.... the authorities referred to in the concerned judgments, and cited before us, as in our opinion, these decisions have not dealt with the cardinal aspect of statutory obligation fastened upon the registered person to maintain books of accounts and record within the meaning of Chapter VII of the 2017 Rules, which are primary documents and source material on the basis of which self-assessment is done by the registered person including about his eligibility and entitlement to get ITC and of OTL. Form GSTR-2A is only a facilitator for taking an informed decision while doing such self-assessment. Non-performance or non-operability of Form GSTR-2A or for that matter, other forms, will be of no avail because the dispensation stipulated at the relevant time obliged the registered person to submit returns on the basis of such self-assessment in Form GSTR-3B manually on electronic platform. The provision contained in Section 39 (9) of the 2017 Act and Rule 61 of the Rules framed thereunder, as applicable at the relevant time, apply with full vigor to the returns filed by the registered person in Form GSTR-3B. 47. Significantly, the registered person is not denied of the opportunity t....
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....Having heard learned counsels, we are inclined to direct partial refund of the amount claimed by the petitioner. We are of the view that the petitioner cannot be made to suffer on account of failure on the part of the respondents in devising smooth transition to GST regime w.e.f. 01.07.2017, from the erstwhile indirect taxation structure. The petitioner, being an exporter under the GST regime is entitled to undertake zero rated supplies. The petitioner claims to have undertaken exports in the months of July and August, 2017 and since its unutilized Input Tax Credit - to the tune of Rs.3,13,06,050/-, which was accumulated up to June, 2017, was not reflected in its ITC ledger as on 01.07.2017, it could not utilize the same w.e.f. 01.07.2017. The same resulted in the petitioner having to shell out, in cash Rs. 1,37,37,029/- which would not have been required, had the respondents taken care to ensure that the petitioner was able to utilize its accumulated Input Tax Credit in the said months. Even the Form GST TRAN-1 was made available on the portal of the respondents only from 25.08.2017. The business activity in the country could not be expected to come to a standstill, only to await ....
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....as input tax credit under this Act; or (ii) where he has not furnished all the returns required under the existing law for the period of six months immediately preceding the appointed date ; or (iii) where the said amount of credit relates to goods manufactured and cleared under such exemption notifications as are notified by the Government. 39. As per sub-section 2 to Section 140 of the Central Goods and Services Tax Act, 2017, a registered person, other than a person opting to pay tax under Section 10, shall be entitled to take, in his electronic credit ledger, credit of the unavailed CENVAT credit in respect of capital goods, not carried forward in a return, furnished under the existing law by him, for a period ending with the day immediately preceding the appointed day within such time and in such manner as may be prescribed. 40. Section 140 of the Central Goods and Services Act, 2017 is reproduced below: "(1) A registered person, other than a person opting to pay tax under section 10 shall be entitled to take, in his electronic credit ledger, the amount of CENVAT credit [of eligible duties] carried forward in the return relating to the period e....
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....ed day subject to] goods held in stock on the appointed day, within such time and in such manner as may be prescribed, subject to" the following conditions, namely:-- (i) such inputs or goods are used or intended to be used for making taxable supplies under this Act; (ii) the said registered person is eligible for input tax credit on such inputs under this Act; (iii) the said registered person is in possession of invoice or other prescribed documents evidencing payment of duty under the existing law in respect of such inputs; (iv) such invoices or other prescribed documents were issued not earlier than twelve months immediately preceding the appointed day; and (v) the supplier of services is not eligible for any abatement under this Act: Provided that where a registered person, other than a manufacturer or a supplier of services, is not in possession of an invoice or any other documents evidencing payment of duty in respect of inputs, then, such registered person shall, subject to such conditions, limitations and safeguards as may be prescribed, including that the said taxable person shall pass on the benefit of such credit by w....
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.... goods are used or intended to be used for making taxable supplies under this Act; (ii) the said registered person is not paying tax under section 10; (iii) the said registered person is eligible for input tax credit on such inputs under this Act; (iv) the said registered person is in possession of invoice or other prescribed documents evidencing payment of duty under the existing law in respect of inputs; and (v) such invoices or other prescribed documents were issued not earlier than twelve months immediately preceding the appointed day. (7) Notwithstanding anything to the contrary contained in this Act, the input tax credit on account of any services received prior to the appointed day by an Input Service Distributor shall be eligible for distribution as[credit under this Act, within such time and in such manner as may be prescribed, even if] the invoices relating to such services are received on or after the appointed day. (8) Where a registered person having centralised registration under the existing law has obtained a registration under this Act, such person shall be allowed to take, in his electronic credit ledger, credi....
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....duty of excise specified in the second Schedule to the Central Excise Tariff Act, 1985 (5 of 1986); and (vii) the National Calamity Contingent Duty leviable under section 136 of the Finance Act, 2001, (14 of 2001), in respect of inputs held in stock and inputs contained in semi-finished or finished goods held in stock on the appointed day. Explanation 2.-For the purposes of [ sub-section (1) and (5)], the expression "eligible duties and taxes" means-- (i) the additional duty of excise leviable under section 3 of the Additional Duties of Excise (Goods of Special Importance) Act, 1957 (58 of 1957); (ii) the additional duty leviable under sub-section (1) of section 3 of the Customs Tariff Act, 1975 (51 of 1975); (iii) the additional duty leviable under sub-section (5) of section 3 of the Customs Tariff Act, 1975 (51 of 1975); [(iv) the additional duty of excise leviable under Section 3 of the Additional Duties of Excise (Textile and Textile Articles) Act, 1978 (40 of 1978);] (v) the duty of excise specified in the First Schedule to the Central Excise Tariff Act, 1985(5 of 1986); (vi) the duty of excise specified i....
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....h omission or incorrect particulars in the return to be furnished for the month or quarter during which such omission or incorrect particulars are noticed, subject to payment of interest under this Act. Where any registered person after furnishing a return under sub-section (1) or sub-section (2) or sub-section (3) or sub-section (4) or sub-section (5) discovers any omission or incorrect particulars therein, other than as a result of scrutiny, audit, inspection or enforcement activity by the tax authorities, he shall rectify such omission or incorrect particulars in such form and manner as may be prescribed, subject to payment of interest under this Act. 45. Section 39 (9) of the respective GST enactments contemplates rectification of the returns where a registered person who after filing returns discovers any omission or incorrect particulars therein. 46. As far as this case is concerned, it cannot be said that the returns that was filed by the petitioner was incorrect which warrants a rectification on account of the situation contemplated under Section 39 (9) of the respective GST Act, 2017 viz., omission or furnishing of incorrect particulars in the returns. 47. What....
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.... interregnum, part of the liability was discharged by cash by debiting the amounts to the electronic cash ledger. It is under these circumstances, the Honourable Supreme Court observed that non-performance or no-operability of Form GSTR-2A or for that matter, other forms, will be of no avail because the dispensation stipulated at the relevant time obliged the registered person to submit returns on the basis of such self-assessment in Form GSTR-3B manually on electronic platform. This is not the case here. 52. The GST was implemented w.e.f. 01.07.2017. However, the system to implement the GST fully was not operational on 01.07.2017. Thus, the petitioner was unable to transition ITC of Rs. 74,61,65,427/- out of Rs. 82,91,19,712/- which was available to the petitioner under the previous regime. 53. Under Section 54(3)(ii) of the CGST Act, 2017, though the petitioner is entitled to refund of credit accumulated on account of rate of tax on input supplies higher than the rate of tax on output supplies, the petitioner would have been unable to liquidate its credit of ITC in its electronic credit ledger. 54. There will also be no scope for claiming refund of ITC under Section 54(3....