Proceedings under Section 73 of the CGST Act imposing interest and penalty on availment of Credit under wrong head not maintainable

[Bimal jain]

The Hon’ble Kerala High Court in the case of Rejimon Padickapparambil Alex v. Union of India [2024 (12) TMI 399 - KERALA HIGH COURT] allowed the appeal filed against the judgment passed by the Hon’ble Single Judge Bench thereby holding that the availment of ITC under wrong head is a technical mistake and would not fall within the purview of wrong availment of ITC, therefore, the initiation of proceedings for levy of interest and penalty under Section 73 of the Central Goods and Services Tax Act (“the CGST Act”) cannot be initiated in the said case.

Facts:

Rejimon Padickapparambil Alex (“the Appellant”) is a proprietorship concern with the name and style 'Padiken Silks', and is a registered dealer for the purposes of payment of GST. The Petitioner, for the inter-state transactions, in receipt of the IGST paid inward supplies from outside the State, the appellant, instead of showing the IGST component in the eligible credit details in Form GSTR-3B, inadvertently showed the IGST component as nil and added the bifurcated CGST and SGST components of IGST to the existing figures showing eligible CGST and SGST credit for availment of credit which resulted in a mismatch between Form GSTR-2A and Form GSTR-3B maintained in relation to the assessee. What is significant, however, is that it is undisputed that it was the amount shown as IGST in Form GSTR-2A that was split into the components of CGST and SGST and added to the corresponding columns in Form GSTR-3B.

The Assessing Authority (“the Respondent”) noticed the mismatch and opined that the mismatch had resulted in the Appellant utilising 'unavailable credit' towards payment of CGST and SGST on outward supplies. Thereafter, the Respondent proceeded to issue the notice and demand order thereafter, confirming the demand against the Appellant. Aggrieved by the Demand Order passed, the Appellant filed a writ petition before the Hon’ble Kerala High Court wherein the Hon’ble Single Judge vide judgment dated December 19, 2023 (“the Impugned Judgment”) in the case of WP(C) No. 40005 of 2023 wherein the Hon’ble Single Judge dismissed the writ petition.

Aggrieved by the Impugned Judgment passed, the Appellant filed an appeal against the Impugned Judgment passed by the Hon’ble Single Division Bench of the Hon’ble Kerala High Court.

Issue:

Whether the proceedings under Section 73 of the CGST Act imposing interest and penalty on availment of Credit under wrong head is maintainable?

Held:

The Hon’ble Kerala High Court in the case of 2024 (12) TMI 399 - KERALA HIGH COURT held as under:

• Noted that, Section 73 of the Central Goods and Services Tax Act, is only attracted when it appears to proper officer that any tax has not been paid or short paid or erroneously refunded or where input tax has been wrongly availed or utilised for any reason.
• Opined that, in the present case there is no wrong availment of credit, and that the only mistake committed by the Appellant was an inadvertent and technical one wherein the Appellant omitted to mention the figures of IGST separately during filing of return especially when there is no outward supply attracting IGST.
• Held that, the Impugned Judgment passed and demand order issued against the Appellant, is set aside.

Our Comments:

Circular No. 192/04/2023-GST dated July 17, 2023, has given clarification on charging of interest under Section 50(3) of the CGST Act, 2017, in case of wrong availment of IGST Credit and reversal thereof stating that  “Since the amount of input tax credit available in electronic credit ledger, under any of the heads of IGST, CGST or SGST, can be utilized for payment of liability of IGST, it is the total input tax credit available in electronic credit ledger, under the heads of IGST, CGST and SGST taken together, that has to be considered for calculation of interest under rule 88B of CGST Rules and for determining as to whether the balance in the electronic credit ledger has fallen below the amount of wrongly availed input tax credit of IGST, and to what extent the balance in electronic credit ledger has fallen below the said amount of wrongly availed credit. Thus, in the cases where IGST credit has been wrongly availed and subsequently reversed on a certain date, there will not be any interest liability under sub-section (3) of section 50 of CGST Act if, during the time period starting from such availment and up to such reversal, the balance of input tax credit (ITC) in the electronic credit ledger, under the heads of IGST, CGST and SGST taken together, has never fallen below the amount of such wrongly availed ITC, even if available balance of IGST credit in electronic credit ledger individually falls below the amount of such wrongly availed IGST credit. However, when the balance of ITC, under the heads of IGST, CGST and SGST of electronic credit ledger taken together, falls below such wrongly availed amount of IGST credit, then it will amount to the utilization of such wrongly availed IGST credit and the extent of utilization will be the extent to which the total balance in electronic credit ledger under heads of IGST, CGST and SGST taken together falls below such amount of wrongly availed IGST credit, and will attract interest as per sub-section (3) of section 50 of CGST Act, read with section 20 of Integrated Goods and Services Tax Act, 2017 and sub-rule (3) of rule 88B of CGST Rules”.

Sub-rule (3) of Rule 88B of the CGST Rules [Inserted vide Notification No. 14/2022–Central Tax dated July 05, 2022 w.e.f. July 01, 2017]

“(3) In case, where interest is payable on the amount of input tax credit wrongly availed and utilised in accordance with sub-section (3) of section 50, the interest shall be calculated on the amount of input tax credit wrongly availed and utilised, for the period starting from the date of utilisation of such wrongly availed input tax credit till the date of reversal of such credit or payment of tax in respect of such amount, at such rate as may be notified under said sub-section (3) of section 50.

Explanation. -For the purposes of this sub-rule, -

(1) input tax credit wrongly availed shall be construed to have been utilised, when the balance in the electronic credit ledger falls below the amount of input tax credit wrongly availed, and the extent of such utilisation of input tax credit shall be the amount by which the balance in the electronic credit ledger falls below the amount of input tax credit wrongly availed.

(2) the date of utilisation of such input tax credit shall be taken to be, -

(a) the date, on which the return is due to be furnished under section 39 or the actual date of filing of the said return, whichever is earlier, if the balance in the electronic credit ledger falls below the amount of input tax credit wrongly availed, on account of payment of tax through the said return; or

(b) the date of debit in the electronic credit ledger when the balance in the electronic credit ledger falls below the amount of input tax credit wrongly availed, in all other cases.”

Watch Our video on ‘Claiming of ITC Under Wrong Head Is Only a Technical Mistake | HC Set aside Demand | No Revenue Loss’ by CA (Adv) Bimal Jain at: