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2023 (3) TMI 487 - AAR - GSTInput Tax Credit - purchases made from the seller who had discharged its tax liability but the preceding seller has not discharged its liability under the Act - eligibility for ITC when no infrastructure has been provided by the Govt, in order to ensure discharging of tax liability by the sellers falling in the queue of a transaction - non-payment of tax by the seller even though the purchaser is in possession of the invoice, other relevant documents and the payments have been made through banking channels and there is no connivance or collusion between the purchaser and seller. HELD THAT - Section 16 of the CGST Act, 2017, inter alia, prescribes conditions and restrictions for a registered person for availing ITC of input tax charged on supply of any goods or services or both to him which are used or intended to be used in the course of furtherance of his business. In terms of Clause (b) of Sub Section (2) of Section 16 ibid inter alia states that notwithstanding anything contained 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 he has received the goods or services or both. From the perusal of provisions of the section 16(2)(c) CGST Act and PGST Act, it is very much clear that no registered person shall be entitled to take the credit of any input tax in respect of any supply of goods or services or both unless the tax charged in respect of such supply has been actually paid to the Government, either in cash or through utilization of input tax credit admissible in respect of the said supply. If the seller or preceding sellers have not deposited the tax either in cash or through utilization of input tax credit admissible in respect of the said supply, purchaser is not eligible to claim ITC on such supply. Thus, keeping in view the relevant provisions of Section 16(2)(c) of CGST Act read with PGST Act, there are no doubt in holding that the purchaser is not entitled to claim Input Tax Credit on the purchases made by it from the seller who had discharged its tax liability but the preceding seller has not discharged its liability under the Act - application disposed off.
Issues Involved:
1. Entitlement to Input Tax Credit (ITC) when the preceding seller has not discharged its tax liability. 2. Mechanism for ensuring tax liability discharge by all sellers in the transaction chain. 3. Eligibility for ITC in the absence of government-provided infrastructure to ensure tax liability discharge by sellers. 4. Entitlement to ITC when the immediate seller has not paid tax, despite the purchaser having all relevant documents and no collusion. Issue-wise Detailed Analysis: Issue 1: Entitlement to Input Tax Credit (ITC) when the preceding seller has not discharged its tax liability: The applicant sought to determine whether they could claim ITC on purchases from a seller who discharged its tax liability, but the preceding seller did not. According to Section 16(2)(c) of the CGST Act, 2017, and PGST Act, 2017, a registered person is not entitled to ITC unless the tax charged on the supply has been actually paid to the government. This implies that if the preceding sellers have not deposited the tax, the purchaser cannot claim ITC. The ruling concluded that the purchaser is not entitled to claim ITC if the preceding seller has not discharged its liability, even if the immediate seller has. Issue 2: Mechanism for ensuring tax liability discharge by all sellers in the transaction chain: The applicant questioned how they could ensure that all sellers in the transaction chain have discharged their tax liabilities. However, this query was deemed outside the purview of Section 97(2) of the CGST Act and PGST Act, which lists the scope of questions for Advance Ruling. Therefore, no ruling was provided on this issue. Issue 3: Eligibility for ITC in the absence of government-provided infrastructure to ensure tax liability discharge by sellers: The applicant raised concerns about the lack of infrastructure provided by the government to ensure that all sellers in the transaction chain discharge their tax liabilities. Similar to Issue 2, this query was also found to be outside the scope of Section 97(2) of the CGST Act and PGST Act. Consequently, no ruling was issued on this matter. Issue 4: Entitlement to ITC when the immediate seller has not paid tax, despite the purchaser having all relevant documents and no collusion: The applicant sought clarity on whether they could claim ITC if the immediate seller had not paid tax, provided the purchaser had all relevant documents and there was no collusion. This query, like Issues 2 and 3, was outside the scope of Section 97(2) of the CGST Act and PGST Act. Thus, no ruling was made on this issue. Conclusion: The Authority for Advance Ruling, Punjab, concluded that the purchaser is not entitled to claim ITC on purchases if the preceding seller has not discharged its tax liability, as per Section 16(2)(c) of the CGST Act and PGST Act. The other queries raised by the applicant were not addressed as they fell outside the scope of Section 97(2) of the CGST Act and PGST Act.
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