ITC claimed by the Recipient cannot be denied without conducting due diligence of Supplier

[CA Bimal Jain]

The Hon’ble Supreme Court in the case of the THE ASSISTANT COMMISSIONER OF STATE TAX, BALLYGUNJGE CHARGE & ORS.   VERSUS SUNCRAFT ENERGY PRIVATE LIMITED & ORS - 2023 (12) TMI 739 - SC ORDER  reaffirmed the order passed by the Hon’ble Calcutta High Court in the case of SUNCRAFT ENERGY PRIVATE LIMITED AND ANOTHER VERSUS THE ASSISTANT COMMISSIONER, STATE TAX, BALLYGUNGE CHARGE AND OTHERS - 2023 (8) TMI 174 - CALCUTTA HIGH COURT  wherein the Court set aside the order of reversing excess credit availed in Form GSTR-3B as compared to Form GSTR-2A and held that the demand notice issued to the assessee for reversing the ITC could not be sustained without proper inquiry into the supplier’s actions.

Facts:

M/s. Suncraft Energy Private Limited (“the Respondent”) sells goods to the customers and charges GST from them and at the time of filing Form GSTR-3B avails ITC on inward supplies. However, some suppliers did not disclose the supplies in their Form GSTR-1 of the financial year 2017-18. Accordingly, such transactions never auto-populated in Form GSTR-2A of the Petitioner.

The Revenue Department (“the Petitioner”) issued notice to the Petitioner based on mismatch of ITC between Form GSTR-2A and Form GSTR-3B.

A Show Cause Notice was issued to the Respondent on December 06, 2022 (“the SCN”) demanding to reverse the excess ITC claimed by the Respondent in the financial year 2017-18 based on ITC mismatch in Form GSTR-3B and Form GSTR-2A.

The Respondent filed the reply to the SCN, interalia denying the allegations stated in the SCN and submitted that the Petitioner has paid the taxes to the supplier pertaining to the transaction and only thereafter has availed the ITC on said inward supplies.

The Respondent further contended that despite having fulfilled all the conditions as enumerated under Section 16(2) of the Central Goods and Services Tax Act, 2017 (“the CGST Act”) the department erred in reversing the credit availed and has directed the Petitioner to deposit the tax that had already been paid to the supplier at the time of purchasing goods and services.

The Adjudicating Authority passed an order on February 20, 2023 (“the Order”) to demand for payment of tax of INR 6,50,511 along with applicable interest and penalty.

Aggrieved by the Order, the Respondent filed an appeal before the Hon’ble Calcutta High Court.

The Hon’ble Calcutta High Court in the case of SUNCRAFT ENERGY PRIVATE LIMITED AND ANOTHER VERSUS THE ASSISTANT COMMISSIONER, STATE TAX, BALLYGUNGE CHARGE AND OTHERS - 2023 (8) TMI 174 - CALCUTTA HIGH COURT (“the Impugned Order”) set aside the order of reversing excess credit availed in Form GSTR-3B as compared to Form GSTR-2A and held that the demand notice issued to the assessee for reversing the ITC could not be sustained without proper inquiry into the supplier’s actions.

Aggrieved by the Impugned Order, the Petitioner filed a Special Leave Petition before the Hon’ble Supreme Court of India.

Held:

The Hon’ble Supreme Court in the case of THE ASSISTANT COMMISSIONER OF STATE TAX, BALLYGUNJGE CHARGE & ORS.   VERSUS SUNCRAFT ENERGY PRIVATE LIMITED & ORS - 2023 (12) TMI 739 - SC ORDER dismissed the Special Leave Petition and reaffirmed the order passed by the Hon’ble Calcutta High Court in the aforementioned case.

(Author can be reached at [email protected])