2024 (2) TMI 1354 - AAR - GST

Availment of ITC of differential IGST paid - Whether the provisions prescribed under the Goods and Services Tax ( GST ) law imposes any restriction on availment of ITC of the differential IGST paid post on-site audit by Customs authorities? - To be treated as voluntary paid or not - HELD THAT - It could be seen that in respect of both the Sections 73 and 74 meant for demand and recovery, sub-sections (5) and (6) provides the taxpayer with a window for avoidance of show cause notice, provided the taxpayer comes forward to discharge the tax liability cither on the basis of his own ascertainment, or on being ascertained by the proper officer. However, the crucial difference lies in the fact that while Section 73 stipulates payment of tax along with applicable interest, Section 74 on the other hand stipulates that the tax along with applicable interest and a penalty equivalent to fifteen percent of such tax, should be paid, for such avoidance of show cause notice. Further, it could be seen that under the demanding provisions of CGST/TNGST Acts, 2017, except for the provisions of Section 74(5), penalty under fifteen percent could not be found elsewhere under the said legal provisions. In the instant case, the fact that a penalty at 15% has been paid on the tax amount determined by the audit officers, goes to prove that the differential tax has been determined under the provisions of 74(5) of the CGST/TNGST Act, 2017, which in turn involves determination of tax by reason of wifful-misstatement or suppression of facts. That the subject goods have been mis-classified by the applicant initially, points to the fact that the applicant has resorted to willful -misstatement to evade tax, which came to light only when the transaction of the applicant s unit was taken up for audit - it becomes clear that the instant case has to be construed as a case of determination of tax by reason of willful-misstatement to evade tax, in spite of the fact that no show cause notice was issued, or no order was passed in the instant case. Under these circumstances, the differential IGST paid by the applicant docs not become eligible for availment of ITC as laid down under Section 17(5) of the CGST/TNGST Act, 2017. Once the basic issue involving the availment of ITC on the differential tax paid is found to be inadmissible in the instant case, it is opined that the remaining two queries, relating to the time limit prescribed and the documents evidencing payment to be considered as a valid duty paying document, are rendered redundant, as both the queries are in relation to the differential tax paid in the instant case - the law imposes restriction on the availment of ITC under Section 17(5) of the CGST/TNGST Act, 2017, in respect of any tax not paid / short paid in accordance with the provisions of section 74, irrespective of the fact as to whether the proceedings are initiated on the basis of audit or on the basis of an anti-evasion operation, and irrespective of the fact whether a show cause notice is issued in the instant case or not.

Summary

Issues Involved:
1. Eligibility of ITC on differential IGST paid post on-site audit.
2. Applicability of time limit for availing ITC based on Bill of Entry.
3. Validity of challans as duty paying documents for ITC purposes.

Summary:

Issue 1: Eligibility of ITC on differential IGST paid post on-site audit
The applicant contended that they are eligible to avail ITC of IGST paid as part of differential Customs duty based on Bill of Entry (BoE) documents. They argued that Section 16(4) of the CGST Act, 2017, which imposes a time limit on availing ITC, applies only to invoices and debit notes, not BoEs. The State authority, however, stated that Rule 36(3) of the CGST Rules, 2017, restricts ITC for taxes paid due to fraud, willful misstatement, or suppression of facts. The applicant had paid the differential duty along with interest and penalty post-audit by Customs authorities without any show cause notice. The Authority concluded that the differential tax was determined under Section 74(5) of the CGST Act, 2017, due to willful misstatement or suppression of facts. Therefore, the ITC on the differential IGST paid is not admissible under Section 17(5) of the CGST Act, 2017.

Issue 2: Applicability of time limit for availing ITC based on Bill of Entry
The applicant argued that the time limit for availing ITC under Section 16(4) of the CGST Act, 2017, does not apply to BoEs. However, since the basic issue of ITC eligibility on differential tax paid was found inadmissible, the Authority refrained from ruling on this issue.

Issue 3: Validity of challans as duty paying documents for ITC purposes
The applicant claimed that challans evidencing payment of differential IGST should be treated as valid duty paying documents for ITC purposes. Given the inadmissibility of ITC on the differential tax paid, the Authority did not address this issue.

Ruling:
(a) No ruling given due to the reasons discussed.
(b) No ruling given due to the reasons discussed.
(c) Yes, the law imposes restrictions on availing ITC under Section 17(5) of the CGST/TNGST Act, 2017, for taxes not paid or short paid due to willful misstatement or suppression of facts, regardless of audit or anti-evasion operation, and irrespective of whether a show cause notice was issued.