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Input Tax Credit - CRITICAL ISSUES UNDER ITC |
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Input Tax Credit - CRITICAL ISSUES UNDER ITC |
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Section 16(1) explained 16. (1) Every registered person shall, subject to such conditions and restrictions as may be prescribed and in the manner specified in section 49, be entitled to take credit of input tax charged on any supply of goods or services or both to him which are used or intended to be used in the course or furtherance of his business and the said amount shall be credited to the electronic credit ledger of such person.
GSTR 3B Not filed but balance sufficient Q. Incase ITC Ledger & Cash Ledger balance is sufficient but set off has not happened vide GSTR 3B, is interest payable? Ans 1: To the extent of ITC Ledger Balance - Dec 2018 – GST Council in its press release declares its intention in as much as interest should be chargeable on the Cash payment only. Jan 2019 - Telegana High Court in case of M/s. Megha Engineering & Infrastructures Ltd. Vs Commissioner of Central Tax [2019 (4) TMI 1319 - TELANGANA AND ANDHRA PRADESH HIGH COURT] held that interest was payable on the gross tax liability before setting off input tax credit. It specified that Press Note is not the law. Aug 2019 - Finance Act 2019 proposed to insert prospectively, proviso to S 50(1). It clearly implied that interest to be paid on the amount which was being paid through cash and not the amount which was being paid through the electronic credit ledger. Interest on ITC- Feb & March 2020 - Recovery proceedings start and bank accounts are attached without issuance of SCN notice as department holds that the words “on his own” used in Sec 50(1) and Sec 75(12) provide powers to revenue to recover interest as self assessed liability as per S 79 In the case of THE UNION OF INDIA, THE STATE OF KARNATAKA, THE SUPERINTENDENT OFFICE OF CENTRAL G.S.T VERSUS M/S. LC INFRA PROJECTS PVT., LTD., (FORMERLY KNOWN AS LAXMI CONSTRUCTIONS) [2020 (4) TMI 664 - KARNATAKA HIGH COURT], the Division Bench of Karnataka High Court held that the issuance of Show Cause notice is an essential condition (in view of principles of Natural Justice) to proceed with the recovery of interest payable u/s 50. Attaching Bank A/c for recovery without issuance of SCN is held by The Supreme Court as violation of Article 19(1)(g) of The Constitution. April 2020 - Mahadeo Construction Co v. Union of India [2020 (4) TMI 666 - JHARKHAND HIGH COURT]- The Jharkhand High Court mandates the issue of SCN for for calculation of interest before garnishee proceedings can be initiated Jan 2020 – Almost all provisions of FA 2019 were implemented except the above amendment to Sec 50(1) Jan 2020 - Madras High Court in case of Refex Industries Limited held that the tax is to be recovered on the cash portion of the tax Feb 2020 – An official of MoF supposedly writes to field formations to endeavor to collect interest on gross liability. The twitter handle of MoF states that provisio to Sec 50(1) was not notified as some states could not amend SGST Act corresondingly March 2020 - it was decided in the 39th GST Council meeting in March 2020 that such amendment would be given a retrospective effect. However, nothing is notified till date. Ans 2: To the extent of Cash Ledger Balance - 49. (1) Every deposit made towards tax…. shall be credited to the electronic cash ledger of such person. Explanation to Section 49 - Explanation-For the purposes of this section-
Section 50(1) Every person who is liable to pay tax, but fails to pay the tax or any part shall pay, on his own, interest. Section 16(2) explained Section 16 (2) - No registered person shall be entitled to ITC in respect of any supply of goods or services or both to him unless- (a) he is in possession of … tax paying documents as may be prescribed; (b) he has received the goods or services or both. ..Goods or Services are deemed to be received if supplied on the direction of such person (c) …the tax charged in respect of such supply has been actually paid to the Government, either in cash or through utilisation of input tax credit admissible in respect of the said supply; and (d) he has furnished the return under section 39: Brief: The applicant intends to import the goods to the port nearest to the customer's place and supply directly to customer's location from the said port of import and intends to issue the bill/ tax invoice for the said transaction from the registered place of business - Whether the applicant can take credit of IGST paid on import of goods - Whether applicant can issue tax invoice with IGST to the customer - Whether applicant needs to obtain registration in the state where the port of clearance is located? Our Comments: In the present case, it was held by the AAR Karnataka that the applicant is liable to pay IGST on the value of the goods imported into India on reverse charge basis. The applicant is entitled to claim the credit of IGST paid on imported goods in terms of section 20 of the IGST Act 2017 read with section 16 of the CGST Act, 2017 - the applicant’s import are deemed to have been supplied to the location of the importer i.e., Karnataka and then further supplied to customer - The applicant can issue tax invoice with IGST to the customer as per section 20 of the IGST Act 2017 read with section 31 of the CGST Act 2017 for the inter-state transaction as provided under section 7(1) of the IGST Act 2017, when the goods are directly dispatched from the port of import with invoicing done from the registered place of business - there is no need for the applicant to obtain the separate registration in the state where port of clearance located, if he does not have an establishment in that State and effecting supplies from that location. 2nd Proviso to Sec 16(2)- Provided further that where a recipient fails to pay to the supplier of goods or services or both, other than the supplies on which tax is payable on reverse charge basis, the amount towards the value of supply along with tax payable thereon within a period of one hundred and eighty days from the date of issue of invoice by the supplier, an amount equal to the input tax credit availed by the recipient shall be added to his output tax liability, along with interest thereon, in such manner as may be prescribed. Section 16 (4) A registered person shall not be entitled to take input tax credit in respect of any invoice or debit note for supply of goods or services or both after the due date of furnishing of the return under section 39 for the month of September following the end of financial year to which such invoice or ..debit note pertains or furnishing of the relevant annual return, whichever is earlier. Q. In case reverse charge is paid after 2 years, can ITC be availed? Ans: Yes. Since ITC is available on the date of “Self invoice” which is the current date. Q. ITC available on Debit note raised till what point in time? Ans: Debit note can now be raised whenever required and ITC shall be available irrespective if the period of issue of the original invoice. Section 17(2) – ITC reversal Section 17 (2) Where the goods or services or both are used by the registered person partly for effecting taxable supplies including zero-rated supplies under this Act or under the Integrated Goods and Services Tax Act and partly for effecting exempt supplies under the said Acts, the amount of credit shall be restricted to so much of the input tax as is attributable to the said taxable supplies including zero-rated supplies. IN RE: M/S. METRO DAIRY LTD. [2019 (9) TMI 1120 - AUTHORITY FOR ADVANCE RULING, WEST BENGAL] Apportionment of input tax credit on Capital goods - The Applicant has procured capital goods and input services that are common to the production of both taxable and exempted goods - Apportionment input tax credit during the period when capital goods were used for manufacturing taxable goods, and how the balance amount of the input tax should be apportioned after production of the exempted goods commences – HELD - Based on the proviso to rule 43(1)(d) of the GST Rules and further prescriptions under rule 43(1)(e), (f) and (g) of the GST Rules, the Applicant is required to compute the admissible amount of the input tax credit on the capital goods used for both taxable and exempt supplies in the tax periods over the useful life of such capital goods, calculated from the date of invoice. The Applicant shall reverse the balance amount of the input tax on the said capital goods that has already been credited to its electronic credit ledger. Section 17(3) – ITC reversal Calculate the ITC liable for reversal –
STATUS OF SAFARI RETREATS CASE The decision of the Hon'ble Orissa High Court in the case of M/S. SAFARI RETREATS PRIVATE LIMITED AND ANOTHER VERSUS CHIEF COMMISSIONER OF CENTRAL GOODS & SERVICE TAX & OTHERS [2019 (5) TMI 1278 - ORISSA HIGH COURT]- Department has filed an appeal under SLP No.26696/2019 before the Hon'ble Supreme Court of India, CHIEF COMMISSIONER VERSUS SAFARI RETREATS PRIVATE LIMITED [2020 (3) TMI 1150 - SC ORDER] against the order of the Hon'ble High Court of Orissa. In our considered opinion the provision of Section 17(5)(d) is to be read down the narrow restriction as imposed, reading of the provision by the Department, is not required to be accepted, in as much as keeping in mind the language used in EICHER MOTORS LTD. VERSUS UNION OF INDIA [1999 (1) TMI 34 - SUPREME COURT] (supra), the very purpose of the credit is to give benefit to the assessee. In that view of the matter, if the assessee is required to pay GST on the rental income arising out of the investment on which he has paid GST, it is required to have the ITC on the GST, which is required to pay under Section 17(5)(d) of the CGST Act. ITC on Staff Mediclaim Q. Can ITC be availed on GST paid on Staff Mediclaim for FY 2020-2021? Ans: Section 17(5)(b) of the CGST Act 2017 states that, “input tax credit shall not be available in respect of health insurance except where The Government notifies the services which are obligatory for an employer to provide to its employees under any law for the time being in force.” The guidelines issued by the MHA vide Order No. 40-3/2020-DM-I(A) Dated 15th April, 2020 amongst other things specifies that all industrial and commercial establishments, workplaces, offices, etc, shall be required to obtain medical insurance for the workers mandatorily before starting their operations after the lockdown. In the given situation the guidelines of MHA issued under the powers conferred u/s 10(2)(l) of the Disaster Management Act, 2005 would be considered as law. Therefore, the registered persons purchasing such insurance cover for their workers can be said to be doing it as a part of an obligation under the law. However, MHA vide Order No. 40-3/2020-DM-I(A) Dated 17th May 2020 stated that the previous orders shall cease to have effect from 18th May,2020. Conclusion: From the above, a view is possible that ITC in respect of Worker Mediclaim shall be admissible for the period between 15.04.2020 and 18.05.2020. Now the use of the word 'workers' and not 'employees' is also relevant. Brief: Applicant plans to replace the existing Lift/Elevator in their society building, along with its supporting structures - whether the applicant is entitled to claim Input Tax Credit of GST paid on replacement of existing lift/ elevator. Our Comments: In the present case, it was held by AAR of Maharashtra that after being erected and installed the lift would become an immovable property as it is attached to the building itself. Manufacture, Supply, Installation and Commissioning of Lifts/ Elevators is in the nature of Works Contract activity which results in creation of an immovable property. Hence in view of Explanation to Section 17 of the CGST Act, the applicant is not entitled to Input Tax Credit of GST paid on replacement of existing Lift/Elevator, in its premises. Our View - Apex Court in case of Sirpur Paper Mills upheld the view that where plant & Machinery are capable of being dismantled and sold without being destroyed and are only embedded to the earth because of operational efficiency, it is not an immovable property. Brief: Whether amount recovered from the employees towards parental insurance premium payable to the insurance company would be deemed as “Supply of Service” by the applicant to its employees? Our Comments: In the present case, it was held by AAR of Uttar Pradesh that the recovery of premium amount from employee and subsequent deposit it with insurance company cannot be treated as supply of service in the course of furtherance of business. Providing insurance facility to employees’ parents is nowhere connected with the business of the applicant - facilitating insurance services for employees’ parents is not an activity which is incidental or ancillary to the activity of the applicant of developing software, nor can it be called an activity done in the course of or in furtherance of development of software. Therefore, no GST is payable on the such amount recovered from the employees. IN RE: NMDC LIMITED [2019 (4) TMI 1449 - AUTHORITY FOR ADVANCE RULINGS, CHHATTISGARH] Brief: Works Contract - Scope of section 16 of CGST Act, 2017 – Civil works, supplies and erection project for construction of railway siding - Whether input tax credit can be availed for civil and railway allied works in connection with the laying of private Railway Siding; Whether input tax credit can be availed on signaling & telecommunication system, mechanical and structural works in relation to Railway Siding; and whether input tax credit can be availed on execution of P-Way, Civil, overhead electrification, general electrical and signaling & telecommunication works for the proposed block station yard in relation to private Railway Siding – Civil structure /immovable property or “plant and machinery” Our Comments: In the present case, it was held by AAAR of Chhattisgarh that the instant contract consists of transfer of property in goods, coupled with supply of services which leads to the inevitable conclusion that this is a case of Works contract, covered under the definition of Works Contract as defined under section 2(119) of the CGST Act, 2017 - the said project of Private Railway siding awarded to the Contractor by the Appellant is not as simple or movable. The work consists of an entire system comprising of a variety of different structures which are installed after a lot of prior work which involves Civil work, Civil engineering, Ground work, supply, Foundation work, Fabrication, Erection of Building Steel Structures, sheds, Block cabin, Railway allied works, Signaling & telecommunication works, Construction of Railway Staff quarters, Station building etc. The magnitude of project covers a large area, tailored specifically to fit the dimensions and orientation of the needs of the project. The said project of private Railway siding, consists of civil structures with foundations are immovable in nature. Thus, the project of construction of Private Railway siding fulfils the conditions of it being an immovable property. To apply the term “used for” in the definition for plant and machinery, there should be a nexus between the impugned items on which ITC is being claimed and “outward supply”. In the present case the project of private Railway siding, consists of civil structures with foundations etc. will render such nexus tenuous – Input Tax Credit will not be available as railway siding is not plant and machinery as defined in Section 17 of CGST Act, 2017 - there is no merit in the appeal filed by the Appellant and the same is rejected. Section 17(5) Blocked Credit Q. Is the ITC available on “Rent of a Motor Vehicle” with more than 13 seat Capacity? Ans: Yes, as per Sec 17(5)(b)(i) of The CGST Act 2017 from 1st Feb 2019. Q. In case of goods ‘damaged’ by flood, is ITC reversal required as per Sec 17(5)(h)? Ans: No, as per Sec 17(5)(h) of The CGST Act 2017, ITC reversal is required for “goods lost, stolen, destroyed, written off or disposed of by way of gift or free samples”. However, no reversal is required for ‘damaged items’. Section 19 – ITC on goods sent on Job Work Q. Is the time limit of 1/3 years applicable for Items which go out of factory for items sent for repairing, testing, processing, etc.? Ans: From the combined reading of Sec. 143 & 19, Rule 45 and Circular 38, it is clear that, if any moulds and dies, jigs and fixtures, or tools sent out to a job worker for job work, the time frame of 1 or 3 years to receive back the same shall not be applicable and shall not be treated as supply even though it is not received back within the time frame of 1 or 3 years. As far as the reporting of the same in Return GST ITC-04 is concerned, there is no exclusion has been made in this regard. So, if any moulds and dies, jigs and fixtures, or tools sent out to a job worker for job work or received back from a job worker shall be reported in Return GST ITC-04 as and when sent or received. However, the time limit u/s 19 is applicable for other items for repairing, testing, processing, etc. Section 20: Input Service Distributor Question: There are 15 invoices of say ₹ 100/- ITC each as per the books. Total ITC available is ₹ 1500/- as per the books. Tax showing in GSTR-6A is of 8 invoices of ₹ 100/- each, total - ₹ 800/- as per GSTR-6A. As per Rule 36(4), ISD assessee can avail 800 + 10% of 800 = 880/-. But since GSTR-6 requires invoice wise booking, then how can ₹ 80/- be claimed by ISD assessee in the respective tax period? Ans: The stepwise procedure which may be followed is as follows - 1. Total ITC available is ₹ 1500/- as per the books. 2. Tax shown in GSTR-6A is of 8 invoices of ₹ 100/- each, total - ₹ 800/- as per GSTR-6A. 3. Total eligible credit = 800+10%= 880/- 4. As per normal process one can avail the credit of first 8 invoices which we assume to be 800/-. 5. Remaining invoices = 7 6. In Table 3 of GSTR-6, for the 9th invoice, one can take the credit of ₹ 80 instead of ₹ 100/- in the current month, say February 2020 and distribute to ISD accordingly. 7. In the next month, the 9th invoice appears in GSTR-6A. Now one can amend the same and distribute balance ₹ 20 to other ISD branch Accordingly, the GSTR-6 return can be filed. This is not mentioned in the Law, but the procedure takes care of the substantive Law for which there is no machinery. Rule 36(4) Advisory Defense against advisory regarding availment of excess ITC than the credit admissible under Rule 36(4) of CGST Rules 2017 notified w.e.f. 09.10.2019 – Advisory – As you are aware, Rule 36(4) of the CGST Rules 2017 notified w.e.f. 09.10.2019, restricts availment of credit to 120% of the eligible credit based on invoices/debit notes uploaded by the supplier in their GSTR-1s. From 1st January 2020, the eligibility has got reduced to 110% of such eligible credit. Records indicate that in your GSTR-3B return for Dec-2019 you have availed credit of Rs……………… more than the credit admissible under Rule 36(4) of the tax reflected in your GSTR 2A for the said period. You are advised to reverse the amount of credit availed in excess. In case such credit has been utilised for paying tax, the same may be deposited through FORM DRC-03 with applicable interest. In case the opportunity for voluntary compliance as suggested is not availed, appropriate action for recovery of excess ITC availed with interest and imposition of penalty shall be initiated as per the law. Rule 86A: Blocking of differential ITC availed Exclusions from 4B(5) 1. ITC on inward supplies of Goods from SEZ – However Services Received from SEZ are eligible. 2. ITC Availed for Last Year in Current FY Vide Circular 26/2017. 3. Missed out ITC availed in current month. 4. Supply initiated in Last month but received in current month. 5. Reclamation of ITC after reversal invoking 2nd proviso to Sec 16(2). 6. Excess reversal of ITC restored back under Rule 42(2) after final calculation. 7. ITC travelling directly to Credit ledger like through ITC-01, ITC-02, TRAN-1, TRAN-2 and TRAN-3 is also outside the purview of Rule 36(4). 8. Certain invoices not appearing in GSTR 2A which is constantly updating. 9. Invoices showing only SUBMITTED and not FILED. 10. Ineligible ITC. 11. Value mismatch. 12. Suppliers filing quarterly returns. 1) The officer … not below the rank of an AC… having reasons to believe on the following grounds that credit of ITC is fraudulently availed or is ineligible may block ITC - a) ITC has been availed on invoices, etc - i. issued by a person who has been found non-existent or not .. conducting .. business registered place ii. without receipt of goods or services or b) ITC has been availed on the strength of any document, the tax charged on which has not been paid to the Govt; or c) The recipient is found non-existent or d) The recipient does not possess the document Defenses on a/c of Rule 86A being irregularly implemented 1. From the email received, we understand that your honor has no reason to invoke Rule 86A of CGST Rules 2017. Just due to a prima-facie mismatch in ITC availed in GSTR 3B vis-à-vis ITC available in GSTR 2A, ITC has been blocked. 2. the same could have been asked by means of a notice rather than blocking ITC which can cause financial hardship to the tax payer. 3. The detailed reason for such differences are explained and justified in our submission above and we hope that the same will suffice your requirement.
ABOUT THE AUTHOR: VIVEK JALAN [FCA, L.LM, L.LB, B.Com(H)] He is a regular speaker at various professional forums on the various key areas in Direct & Indirect Taxes and has delivered more than 200 lectures on various topics under Income Tax, GST, Customs, Foreign Trade Policy of India, etc.
By: Vivek Jalan - July 17, 2020
Discussions to this article
1.Review application is pending against the judgment of Telengana High court in case of Megha Engineering & Infra Ltd. v. Commissioner of Central Tax. 2019 (4) TMI 1319 - TELANGANA AND ANDHRA PRADESH HIGH COURT 2. S.16(4).─Section 16(2), CGST Act, 2017 which laid down 4 conditions for availment of ITC & starts with notwithstanding clause meaning thereby that it supersedes sub-section 4 of section 16, based on the following cases; Synergy Fertichem Pvt. Ltd. v. State of Gujarat (Guj) = 2019 (12) TMI 1213 - GUJARAT HIGH COURT, A.C.T.O. v. Laxmi Misthan Bhandar (Raj) (1989) 74 STC 260 = 1988 (4) TMI 418 - RAJASTHAN HIGH COURT, Central Bank of India v. State of Kerala (2009) 4 SCC 9 (SC) = 2009 (2) TMI 451 - SUPREME COURT, Beyond this, no more conditions can be put under GST Act by framing rules or otherwise. Quoting contrary Judgments of other courts will be beyond legislature in this regard. ITC is a vested property right under Article 300A, Constitution of India per recent judgment in Union of India & Ors. v. Adfert Technologies Pvt. Ltd. 2020 (3) TMI 188 - SC ORDER. Previously also, ITC/CNVAT Credit was held to be a vested right, which can not be allowed to be lapsed vide case laws─(1999) 106 ELT 3 Eicher Motors Ltd. v. Union of India(SC) = 1999 (1) TMI 34 - SUPREME COURT, Siddharth Enterprises v. The Nodal Officer & Ors. (Guj)* 2019 (9) TMI 319 - GUJARAT HIGH COURT. *The review petition filed by the Govt. has been dismissed by the court 2020 (2) TMI 1240 - GUJARAT HIGH COURT Nodal Officer & Ors. v. Siddharth Enterprises (Guj) The Hon’ble Supreme Court held that “every taxing statue including, charging, computation and exemption clause (at the threshold stage) should be interpreted strictly per SC case 2018 (7) TMI 1826 - SUPREME COURT Commissioner of Customs v. Dilip Kumar and Company per SC case 2017 (9) TMI 1308 - SUPREME COURT State of Karnataka v. M.K. Agro Tech Pvt. Ltd.. It is settled proposition of law that taxing statutes are to be interpreted literally and nothing could be added to what is stated in the itself per SC case 2014 (7) TMI 235 - SUPREME COURT Eureka Forbes Limited v. State of Bihar and Ors.. The court only interprets the law within the four corners of the Act and cannot legislate it under the disguise of interpretation. Sub-clause (d) of section 16 stipulates “furnishing of return u/s 39 for entitlement of ITC”. This clause nowhere mentions “timely submission of returns and/or debarring rectification statute of any return belatedly, for being entitled to avail ITC. The “notwithstanding clause”, in the section 16(2) means that it supersedes [1] all the sub-sections of section 16 including sub-section (4). As such, in our view, if a registered person has furnished returns &/or rectified any return belatedly, he is entitled to ITC and his vested right per SC Case (1999) 106 ELT 3 = 1999 (1) TMI 34 - SUPREME COURT Eicher Motors Ltd. v. Union of India Can not be withdrawn. The SLP filed by the Govt. against the decision of High Court of Punjab and Haryana in the case of Adfert Technologies Pvt. Ltd. has been dismissed by the Hon’ble Supreme court on 28.2.2020 = 2020 (3) TMI 188 - SC ORDER, making the following ratio decidendi of P&H High Court as Final & binding on the lower courts “The right to carry forward the Unutilized credit has been recognized as vested right and property in terms of Article 300A of the Constitution of India”. Moreover, the Govt. has no legal authority to retain the amount of credit to which the respondent is entitled to and retention of it by the Govt., cannot be sustained, being violative of Article 265 of the Constitution of India Per Gujarat HC case of Jakap Metind Pvt. Ltd. v. Union of India & Ors. = 2019 (11) TMI 710 - GUJARAT HIGH COURT 3. The Writ petition is pending in Rajasthan High Court for ascertaining Constitutional validity of Rule 36(4) CGST Rules, 2017 4. The term Ineligible ITC has not been defined in the CGST Act. In view of the above disputes and adamant approach of CBIC, what is your opinion for the purpose of reporting the figure in this regard.
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