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TMI BlogSCRUTINY PARAMETERS CASE FOR 20-21X X X X Extracts X X X X X X X X Extracts X X X X ..... SCRUTINY PARAMETERS CASE FOR 20-21 X X X X Extracts X X X X X X X X Extracts X X X X ..... invoices are uploaded in GSTR-1 by party as per GSTR-2A in subsequent period. The party has not filed GSTR-3B hence tax officer's own intiative and cancelled (suo-moto) registration w.e.f. 31.07.2020 on May-21. Pl advise what reply to submit to department on the above subjects. Reply By KASTURI SETHI: The Reply: Dear Querist, (1) Pl. peruse Calcutta High Court Judgement in the case of Garg ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o Traders Vs. Joint Commissioner reported as 2023 (6) TMI.533-Cal.H.C. Date of order 12.6.23. (2) Also go through an article on the issue written by Sh. Siddhant Pathak and displayed in TMI on 21.6.23. (3) Also go through an article on the issue written By Sh. Bimal Jain C.A. and displayed in TMI on 22.6.23. Reply By Padmanathan Kollengode: The Reply: This issue is highly contentious. There ar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e many judgments in Pre-GST regime also that demand cannot be made on ITC passed on by a dealer before cancellation. However, in your case the supplier has not filed GSTR-3B for the relevant period for which ITC has been passed on. Thus, one of the condition for taking ITC i.e., section 16(2)(c) is not satisfied. In my opinion, this matter will have to travel up to Courts to get settled. You wil ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l have to take a stand based on the quantum involved, cost of litigation, litigation-apetite etc Reply By KASTURI SETHI: The Reply: Dear Querist, The following points are worth consideration:- (1) Your period involved is 20-21 and sub-sections of Section 16 (2) (aa) and (2) (ba) have been inserted w.e.f. 1.1.22 and 1.10.22 respectively. This technical ground can help you. (2) On the other han ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d, your availment of ITC is subject to fulfilment of the conditions laid down in Sections 38 and 37 of CGST Act also. Section 38 stands amended w.e.f. 1.10.22 (but already chained even prior to 1.10.22 ) and Section 37 stands amended retrospectively w.e.f. 1.7.17. Both these Sections are legal bottlenecks in getting relief and the major legal hurdle is Section 155 of CGST Act. (3) It is the duty ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the Govt. to recover the tax not paid/deposited into Govt. account by the supplier. (4) Practically and constitutionally, the buyer has neither control over the supplier nor can even supervise/ monitor his transactions/activities There is no doubt that you will have to face litigation. You will have to fight a very long legal battle in this case. The Govt. has statutorily surrounded. the buye ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r who takes ITC with an aim to safeguard Govt. revenue. Disclaimer : My above views are my personal views and are not meant for legal and Court purpose. My views are for enrichment of knowledge of the querist and other visitors of TMI website. Reply By KASTURI SETHI: The Reply: Also read Rule 37 A of CGST Rules for taking re-credit after payment of tax by the supplier and filing GSTR 3 B retur ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n. Inserted w.e.f. 26.12.22 Reply By Ganeshan Kalyani: The Reply: The latin maxim Lex non cogit ad impossibilia means ' law does not compel one to do that which cannot possibly be done. ' It is evident that the conditions prescribed by S. 16 (2) (c) of the Act cast a burden on a recipient of a taxable supply to ensure the supplier makes payment which is impossible to be discharged by him ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . X X X X Extracts X X X X X X X X Extracts X X X X
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