Recovery u/s 79, Goods and Services Tax - GST

[Kunal Agrawal]

Whether proper officer can recover amount directly from electronic cash/credit ledger?

Posts / Replies

[Amit Agrawal]

Kindly read 79 (1) (a) of the CGST Act, 2017, with Rule 143 of the CGST Rules, 2017.

[Kunal Agrawal]

Dear Amit Ji

79 (1) (a) can be used in case of money owing with the proper officer or any specified officer.

Now balance in electronic cash/credit ledger is money of registered person himself. If we treat balance in electronic cash ledger as money owing with officer then no interested to be paid if GSTR-3B defaulted but tax deposited.

[Amit Agrawal]

'any money owing to such person which may be under the control of the proper officer' - a term used u/s 79 (1) (a) - includes money lying with electronic cash/credit ledger which is 'owned' by such person / tax-payer / defaulter but which is under control of the proper officer, in my view.

These are ex facie views of mine and the same should not be construed as professional advice / suggestion.

[Kunal Agrawal]

Dear Amit Ji,

If we take this view then can department demand interest on amount deposited but GSTR-3B filed after due date.

If electronic cash ledger is under control on the proper officer, then has been paid and no interest can be demanded.

This is my personal view.

[KASTURI SETHI]

When any tax payer declares its liability in the return, there is no need of SCN for recovery. Section 79 of CGST Act corresponds to erstwhile Section 87 of the Finance Act for recovery of ST.

 

[KASTURI SETHI]

I also agree with Sh.Amit Agrawal Sir.

[Alkesh Jani]

Shri

If possible please furnish full facts and elaborate the query, so that our experts can guide you well in the matter.

Thanks

[ABHISHEK TRIPATHI]

Dear Kunal Ji,

S. 79(1)(a) has proper officers and specified officers. For proper officer, this section contemplates the situation of refund (because such refund is under the control of the proper officer). "from any money owing to such person" - this means 'refund' type of cases. So this is more or less for the situation of refund. If INR 100 as a refund to be given and INR 80 is the amount payable under GST, then from INR 100, INR 80 will get deducted.

So no they cannot recover from ledger under Section 79.

[Amit Agrawal]

'Money' is defined u/s 2 (75) of the CGST Act, 2017 as follows:

"“money” means the Indian legal tender or any foreign currency, cheque, promissory note, bill of exchange, letter of credit, draft, pay order, traveller cheque, money order, postal or electronic remittance or any other instrument recognised by the Reserve Bank of India when used as a consideration to settle an obligation or exchange with Indian legal tender of another denomination but shall not include any currency that is held for its numismatic value;"

One needs to analyze & interpret all these terms used in the definition (read with past court rulings in various contexts) and then, apply those interpretation in context of language used u/s 79 (1) and clause (a) thereunder.

This analysis - I believe - will be time consuming work but needed to be taken first, before challenging Dept's right to do recovery u/s 79 (1) (a) by debiting balances available in these electronic cash / credit ledgers maintained at Dept.

Kindly note that I myself have not done any analysis what-so-ever in above context. I just trying here to explain some of potential bottlenecks in challenging correctness of Dept's chosen course of recovery-action.

These are ex facie views of mine and the same should not be construed as professional advice / suggestion.

[Amit Agrawal]

One more thing, one needs to consider in the context of original query raised.

When there is admitted a liability to pay (which belongs to Government, thereby people of India as a whole) and tax-payer defaulted on it and only grievance of the tax-payer is about mode of recovery deployed by Dept. to collect such amount, I doubt very much that any High Court will even entertain such writ petition - about technicalities about power u/s 79 - when concerned tax-payer is admittedly a defaulter of 'public-money'.

These are ex facie views of mine and the same should not be construed as professional advice / suggestion.

[Shilpi Jain]

Unless there is a confirmed demand, no recovery can be made.

If you are referring to blocking of credit ledger, it can only be blocked and the balance in such ledger cannot be used or debited by the department as was held in a HC decision.