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TMI Blog2021 (9) TMI 381X X X X Extracts X X X X X X X X Extracts X X X X ..... engal Authority for Advance Ruling Regulations, 2018. 1.1 At the outset, we would like to make it clear that the provisions of the Central Goods and Services Tax Act, 2017 (the CGST Act, for short) and the West Bengal Goods and Services Tax Act, 2017 (the WBGST Act, for short) have the same provisions in like matter except for certain provisions. Therefore, unless a mention is specifically made to such dissimilar provisions, a reference to the CGST Act would also mean reference to the corresponding similar provisions in the WBGST Act. Further to the earlier, henceforth for the purposes of these proceedings, the expression 'GST Act' would mean the CGST Act and the WBGST Act both. 1.2 Eastern Coalfields Ltd (hereinafter referred to as, the applicant) is stated to be a producer and supplier of coal. The applicant submits that he has received services from M/s Gayatri Projects Ltd (GSTIN: 19AAACG8040K1ZG) and has availed of input tax credit during the tax periods January'20, February'20 and March'20 respectively against 03 (three) invoices bearing number 43 dated 01.01.2020, 44 dated 01.02.2020 and 45 dated 02.03.2020 issued by the said supplier of services. Payments against such sup ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , 2017 thereby implementing provision of FORM GSTR-2B has been made effective from 01-01-2021. However, in the instant case, ITC had been taken by the applicant in the month of Jan-2020, Feb-2020 and March -2020. The Remarks "Return Filed Post Annual Cut-off' mentioned in the FORM GSTR-2B of the applicant was generated on trial run basis pertaining to the tax period November -2020 which was prior to 01-01-2021 and it did not have any statutory force during November-2020, being effective from 01-01-2021 onwards. 2.3 As a matter of fact, FORM GSTR-2B had no existence at all during material period of the case i.e. from 01-01 -2020 to 31-12-2020. Prior to substitution of Rule 59 & Rule 60, in the present form, the earlier Rule 59 & Rule 60 were in existence till 31-12-2020 which did not prohibit, in any manner, availment of Input Tax Credit claimed by the Applicant in the instant case. 2.4 The GST Act came into existence w.e.f. 01-07-2017 with the specific motive of seamless availment of Input Tax Credit and every registered person relied upon it. 2.5 Section 16 of the GST Act has prescribed the eligibility and conditions for taking input tax credit. Sub-section (2) of section 1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... no prohibition, in any manner, for availment of input tax credit claimed by the Applicant in the instant case. 2.12 In view of above facts and legal position of existing GST Law, the applicant is entitled for the input tax credit already claimed by them on the Invoices bearing No. 43 dated 01-01-2020, 44 dated 01-02-2020 and 45 dated 02-03-2020 raised by M/S Gayatri Projects Ltd. in the instant case. 3. Submission of the Revenue 3.1 The concerned officer from the revenue has expressed his view in writing which is summarised as under: (i) Eligibility, conditions and time limit for taking Input Tax Credit have been provided under section 16 of the GST Act. (ii) In the instant case, the applicant has fulfilled the conditions as specified under section 16(2)(a) and section 16(2)(b) of the GST Act as he has taken credit of ITC for invoices dated 01-01-2020, 01-02-2020 and 02-03-2020 in question in the month of January' 20, February' 20 and March' 20 respectively for which the service were received by them in the month of December'19, January' 20 and February' 20 respectively. (iii) Further, the applicant has also fulfilled the condition specified under section 16(4) of the said ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sake of convenience, is reproduced herein under: 16. Eligibility and conditions for taking input tax credit.-(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. (2) Notwithstanding anything contained in this section, no registered person shall be entitled to the credit of any input tax in respect of any supply of goods or services or both to him unless,-- (a) he is in possession of a tax invoice or debit note issued by a supplier registered under this Act, or such other tax paying documents as may be prescribed; (b) he has received the goods or services or both. [Explanation.- For the purposes of this clause, it shall be deemed that the registered person has received the goods or, as the case may be, services-- (i) where the goods are delivered by the supplier to a recipient or any other person on the direction of suc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rn under the said section for the month of March, 2019 in respect of any invoice or invoice relating to such debit note for supply of goods or services or both made during the financial year 2017-18, the details of which have been uploaded by the supplier under sub-section (1) of section 37 till the due date for furnishing the details under sub-section (1) of said section for the month of March, 2019.] 4.4 It therefore follows that while sub-section (1) of section 16 of the GST Act provides for entitlement of input tax credit to every registered person subject to such conditions and restrictions as may be prescribed and in the manner specified in section 49, sub-section (2) of section 16 which is a non-obstante provision specifically refers to the conditions where a registered person shall not be entitled to take the credit of input tax in respect of any supply of goods or services or both to him. Further, sub-section (3) and (4) of the said section also put restrictions towards entitlement of input tax credit under certain situations. 4.5 In the case in our hand, we find that the applicant has availed credit of input tax upon receipt of services from M/s Gayatri Projects Limited ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... son in respect of invoices or debit notes, the details of which have not been uploaded by the suppliers under sub-section (1) of section 37, shall not exceed 10 per cent. of the eligible credit available in respect of invoices or debit notes the details of which have been uploaded by the suppliers under sub-section (1) of section 37.". 4.10 In this context, reference may be drawn to para 3 of the Circular No. 123/42/2019- GST dated 11.11.2019 issued by Central Board of Indirect Taxes and Customs, GST Policy Wing [Corresponding Trade Circular No. 43/2019 dated 18.11.2019 issued by the Commissioner, State Tax, West Bengal] wherein it has been clarified that 'The conditions and eligibility for the ITC that may be availed by the recipient shall continue to be governed as per the provisions of Chapter V of the CGST Act and the rules made there under. This being a new provision, the restriction is not imposed through the common portal and it is the responsibility of the taxpayer that credit is availed in terms of the said rule and therefore, the availment of restricted credit in terms of sub-rule (4) of rule 36 of CGST Rules shall be done on self-assessment basis by the tax payers.' 4. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hen the applicant has availed of input tax credit issues of which we are dealing with in this case. 4.16 Further, we find that a proviso has been inserted to sub-rule (4) of rule 36 vide Notification No. 30/2020-Central Tax dated 03.04.2020 [Corresponding West Bengal Notification No. 462-F.T. dated 15.04.2020] which reads as follows: 'Provided that the said condition shall apply cumulatively for the period February, March, April, May, June, July and August, 2020 and the return in FORM GSTR-3B for the tax period September, 2020 shall be furnished with the cumulative adjustment of input tax credit for the said months in accordance with the condition above.'. 4.17 Circular No. 142/12/2020-GST dated 09.10.2020 has been issued by Central Board of Indirect Taxes and Customs, GST Policy Wing [Corresponding West Bengal Trade Circular No. 09/2020 dated 13.10.2020] clarifying applicability of sub-rule (4) of rule 36 of the CGST Rules, 2017 in terms of the said proviso. Relevant portion of the circular is reproduced herein under: 'It is re-iterated that the clarifications issued earlier vide Circular No. 123/42/2019 - GST dated 11.11.2019 shall still remain applicable, except for the cu ..... X X X X Extracts X X X X X X X X Extracts X X X X
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