e-Invoice, et cetera, is not "electronic" invoice in GST + Rule 138A(2) ultra-vires S.68

[Madhusudan Mishra]

GST Law has no jurisdiction to enact "electronic form" especially when the IT Act has an overriding effect - "Generalia specialibus non derogant". Rule 48 heads as "Manner" of issuing invoice and 48(4) provides for "uploading information" in INV-01 on the common portal for obtaining an IRN. R.48(4) doesn't provide and can't provide for anything which will override S.31. The terms "e-Invoice" or "e-Way Bill" don't mean to their "electronic form" rather their (tax invoice or waybill) "reporting" to the government.

Place of Supply needs to be determined when Tax Invoice is required to be issued for levying the correct tax (C+S or I) and the time of supply would have its base from such tax invoice. There cannot be 2 invoices in GST (Tax Invoice or e-Invoice). Fundamentally, government wants tax invoices issued locally (through PC or Bill Book) to be reported electronically and there is no time period prescribed for such reporting. In such absence, time prescribed in 31 needs to be followed i.e. immediately. And now an advisory on the common portal (not in gazette and without exercising any jurisdiction) released prescribing such a time period to be 30 days prejudicially. What would be the validity of such an advisory? Misplaced use of authority is the misuse of authority. An authority needs to be exercised in the manner provided or not at all.

Well said by someone that this law is not written by "Amir Khusrau". Rule 138A(2) read with 138A(1) is in direct conflict with S.4 of the IT Act (which has an overriding effect) and needs to be rectified immediately. Also, Rule 138A has no jurisdiction for prescribing the "manner of carrying and producing" the documents provided for under S.68. Accordingly, R.138A(2) is ultra-vires S.68.

Vehicle detained for not producing the "physical copy" (rendered in "electronic form" by PIC and mailed by proprietor afterwards) of Tax Invoice (where 48(4) not applicable) is illegal [J.K. JAIN BUILDTECH INDIA PVT. LTD. VERSUS ASSISTANT COMMISSIONER, REVENUE BUREAU OF INVESTIGATION NORTH BENGAL HEAD QUARTER SILIGURI & ORS. - 2023 (4) TMI 157 - CALCUTTA HIGH COURT]. One needs to produce the "physical copy" and other the "QR Code" is also violative of principle of equality as well as creating compliance confusion where the waybill contains all such information.

S.2(41) makes it all clear that "electronic record" as per IT Act leads to "document" in GST. "electronic record" means data stored, received or sent in an "electronic form". Is invoice a document? Obviously yes. Then how an invoice rendered in "electronic form" as per IT Act & GST Law (S.68) becomes invalid and the officer is fearless to detain the vehicle and passed the order.