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TMI Blog2023 (10) TMI 924X X X X Extracts X X X X X X X X Extracts X X X X ..... he main part of Rule 36(4) of the Rules. To that extent, the learned Additional Advocate General is right in his submission that for the purpose of computation of eligible ITC in terms of Rule 36(4), the date of filing of GSTR-1 would remain relevant. No departure thereto may have been made so long as the first proviso to Rule 36(4) did not interject. Coming to the core issue of the language used, the proviso first contemplates that the condition prescribed under Rule 36(4) shall apply cumulatively. The word cumulative has not been defined under the Act or the Rules. However, plainly it conveys increase or addition to size (here quantum) with successive additions without corresponding losses (here deductions). It may be useful to refer to a few dictionary meanings given to the word cumulative - the condition contained in sub-Rule 4 of Rule 36 that the eligible ITC would not exceed 10% of the eligible credit as per Tax Invoice or Debit Note etc., filed on GSTR-1 would have to be seen cumulatively i.e., with all additions made, taken together. The period for which such cumulative effect was to be given has also been specified in that proviso, being for the months of February 2020 to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f Rs. 11,00,69,010/-, from the date of that excess recovery to the date of its actual refund. The impugned order is quashed - petition allowed. - Hon'ble Saumitra Dayal Singh And Hon'ble Vinod Diwakar JJ. For the Petitioner : Nishant Mishra,Alok Yadav For the Respondent : A.S.G.I.,Ashok Singh,C.S.C.,Manu Ghildyal ORDER 1. Heard Sri Tarun Gulati, learned Senior Counsel assisted by Sri Nishant Mishra, Sri Kishore Kunal, and Ms. Vedika Nath, learned counsel for the petitioner, Sri Gaurav Mahajan, learned counsel for Central Board of Indirect Taxes, Sri Manish Goyal, learned Additional Advocate General assisted by Sri Nimai Dass, learned Additional Chief Standing Counsel and Sri Ankur Agarwal, learned Standing Counsel for the State of Uttar Pradesh. 2. Present petition has been filed for various reliefs described in the prayer clause. At the same time, after exchange of affidavits and, upon the matter being heard, prayer nos. B, C and D alone have been pressed. Other prayers have not been pressed, at this stage. Thus, the challenge raised to the vires of Rule 36(4) of the Central Goods and Services Tax Rules, 2017 (hereinafter referred to as the 'CGST Rules, 2017'), h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by the revenue authorities is - they had recovered the disputed amount of tax, penalty, and interest as there was no stay order operating in favour of the petitioner. At the same time, it remains admitted that an amount, Rs. 11,00,69,010/- had been recovered over and above the disputed demand. 7. The petitioner is a duly incorporated company engaged in the business of manufacture, assembly and wholesale trade in cellular phone devices, their spare parts, and accessories. It has a manufacturing facility at Greater Noida, Gautam Buddh Nagar, inside the State of U.P. 8. For the months of February 2020 to August 2020, the petitioner purchased various components of mobile phones etc. from different suppliers within the country. Those purchases were disclosed against the regular Tax Invoice, received by the petitioner. To that extent, there is no dispute between the parties. At the same time, against such purchases made, in the claim of ITC, there exists a dispute between the parties. 9. The petitioner claims there is no excess claim made by it, for the months (period) February 2020 to August 2020. The revenue claims otherwise. Arising from such difference of perception, a common tabula ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... TC (earned for the period February 2020 to August 2020), stood verified at Rs. 88,63,460,752.04. Giving effect to sub-Rule 4 of Rule 36, the petitioner claims entitlement to an additional 10% of that value, leading to total eligible ITC Rs. 97,49,806,827.24. There being no dispute to the fact that the petitioner had utilised ITC of value Rs. 89,35,040,324.89, during that period, the petitioner had available, unutilized positive credit of ITC of about 81 crores, in September 2020. It was carried forward. Hence, the demand of tax, interest and penalty is wholly disputed. 12. Again briefly, the above error in the computation made by the revenue authorities is stated to have arisen upon misreading of the Circular issued by the Central Board of Indirect Taxes and Customs (CBIC in short). Thus, a serious challenge has been laid to Circular No. 123/42/219-GST dated 11.11.2019, specifically clause 3(3) thereof. That administrative instruction issued by the CBIC is described to be in the teeth of Rule 36(4) of the Rules read with its first proviso. Insofar as the Rule referred to above prescribed a cumulative period only, it was never made open to the administrative authorities to override ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ision of the Supreme Court in Union of India vs. Bharti Airtel Ltd. and Others (2022)4 SCC 328, primarily, to emphasize that Form GSTR-2A does not create a substantive right but works as a facilitator to help the petitioner take an informed decision for the purpose of self-assessment. That principle is an integral part of the scheme of the GST regime. Therefore, even otherwise no over reliance may have been placed on GSTR-2A as it existed even at the time of furnishing of original returns Form GSTR 3B by the petitioner, for the months of February 2020 to August 2020. 17. Further, reliance has been placed on a recent decision of the Calcutta High Court in Suncraft Energy Private Limited and Another Vs. The Assistant Commissioner, State Tax, Ballygunge Charge and Others, MAT 1218 of 2023 decided on 02.8.2023 to submit, furnishing of details on GSTR-I by a supplier and the corresponding information that arises to the purchaser on GSTR-2A is nothing more than a facilitation that does not have any effect on the ability of the taxpayer to avail ITC on self-assessment. That would remain governed by the provisions of Section 16 of the Act. 18. Thus, both in view of the clear language of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that clearly requires filing of GSTR-1 before the 10th day of the following month. Next, reference has been made to Section 41(1) of the Act, as existed prior to its amendment, to submit, originally the credit of ITC arose on a provisional basis. To that, additional amounts @ 20% later reduced to 10%, still later reduced to 5% became available to registered persons, every month. Later, that was done away. In any case, such provisional credit remained subject to conditions and restrictions imposed by the Act and the Rules framed thereunder. Hence, the provisions of Rule 36 (4) of the Rules that have been heavily relied on by the learned Senior Counsel for the petitioner would have to take colour from the language of Section 41(1) of the Act. He has also referred to Section 41 (3) (as earlier existed) to submit, any discrepancy that may have arisen had to be communicated by the dealer availing the excess ITC. That excess claim was then required to be rectified under Section 42(5) of the Act. By way of a pari materia provision (under Section 43 as then existed), a similar addition was to be made at the hands of the supplier. 22. Referring to the impugned order, primarily the chart ext ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ling of that Form. There being no dispute to the fact that the Form GSTR-3B had to be filed on the tenth of the following month, the claim being now made by the petitioner has no basis. To bolster his submission, heavy reliance has been placed on Circular No. 136 dated 03.04.2020. 25. Referring to paragraph no.3 of the said Circular in extenso , it has been urged, Clause 6 of paragraph 3 of the said Circular makes it plain that the due date of filing of return of form GSTR-I was not altered. Only the requirement to pay a late fee had been waived for the tax period March 2020 to April 2020 and May 2020 as also for the quarter ending 31 March 2020, subject to the same being furnished on or before 30.06.2020. Referring to Clause 7 of paragraph 3 of that Circular, again it has been submitted, no benefit of the kind claimed by the petitioner was ever conferred. 26. In support of his submission, the learned Additional Advocate General has also referred to the Notifications with respect to which the above Circular had been issued. According to him, Notification No. 30 of 2020 only sought to add proviso to Rule 36(4) with effect from 31.3.2020. Similarly, Notification No. 31 of 2020 only p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ward supplies and such details have been communicated to the recipient of such invoice or debit note in the manner specified under section 37;] (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 such registered person, whether acting as an agent or otherwise, before or during movement of goods, either by way of transfer of documents of title to goods or otherwise; (ii) where the services are provided by the supplier to any person on the direction of and on account of such registered person.] [(ba) the details of input tax credit in respect of the said supply communicated to such registered person under Section 38 has not been restricted;] (c) subject to the provisions of Section 41, CGST (Amdt.) Act, 2018 (31 of 2018), dt. 30.8.2018, 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 fu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... than an Input Service Distributor, a non-resident taxable person and a person paying tax under the provisions of section 10 or section 51 or section 52, shall furnish, electronically, 1[subject to such conditions and restrictions and] in such form and manner as may be prescribed, the details of outward supplies of goods or services or both effected during a tax period on or before the tenth day of the month succeeding the said tax period and such details 2[shall, subject to such conditions and restrictions, within such time and in such manner as may be prescribed, be communicated to the recipient of the said supplies:] PROVIDED that the registered person shall not be allowed to furnish the details of outward supplies during the period from the eleventh day to the fifteenth day of the month succeeding the tax period: PROVIDED further that the Commissioner may, for reasons to be recorded in writing, by notification, extend the time limit for furnishing such details for such class of taxable persons as may be specified therein: PROVIDED also that any extension of time limit notified by the Commissioner of State tax or Commissioner of Union territory tax shall be deemed to be notified ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... otes and may include therein, the details of inward supplies and credit or debit notes received by him in respect of such supplies that have not been declared by the supplier under sub-section (1) of section 37. (2) Every registered person, other than an Input Service Distributor or a non-resident taxable person or a person paying tax under the provisions of section 10 or section 51 or section 52, shall furnish, electronically, the details of inward supplies of taxable goods or services or both, including inward supplies of goods or services or both on which the tax is payable on reverse charge basis under this Act and inward supplies of goods or services or both taxable under the Integrated Goods and Services Tax Act or on which integrated goods and services tax is payable under section 3 of the Customs Tariff Act, 1975 (51 of 1975), and credit or debit notes received in respect of such supplies during a tax period after the tenth day but on or before the fifteenth day of the month succeeding the tax period in such form and manner as may be prescribed: Provided that the Commissioner may, for reasons to be recorded in writing, by notification, extend the time limit for furnishing s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... supply furnished by a registered person (hereafter in this section referred to as the recipient ) for a tax period shall, in such manner and within such time as may be prescribed, be matched (a) with the corresponding details of outward supply furnished by the corresponding registered person (hereafter in this section referred to as the supplier ) in his valid return for the same tax period or any preceding tax period; (b) with the integrated goods and services tax paid under section 3 of the Customs Tariff Act, 1975 in respect of goods imported by him; and (c) for duplication of claims of input tax credit. (2) The claim of input tax credit in respect of invoices or debit notes relating to inward supply that match with the details of corresponding outward supply or with the integrated goods and services tax paid under section 3 of the Customs Tariff Act, 1975 in respect of goods imported by him shall be finally accepted and such acceptance shall be communicated, in such manner as may be prescribed, to the recipient. (3) Where the input tax credit claimed by a recipient in respect of an inward supply is in excess of the tax declared by the supplier for the same supply or the outward ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ead as below: 43A. Procedure for furnishing return and availing input tax credit. (1) Notwithstanding anything contained in sub-section (2) of section 16, section 37 or section 38, every registered person shall in the returns furnished under sub-section (1) of section 39 verify, validate, modify or delete the details of supplies furnished by the suppliers. (2) Notwithstanding anything contained in section 41, section 42 or section 43, the procedure for availing of input tax credit by the recipient and verification thereof shall be such as may be prescribed. (3) The procedure for furnishing the details of outward supplies by the supplier on the common portal, for the purposes of availing input tax credit by the recipient shall be such as may be prescribed. (4) The procedure for availing input tax credit in respect of outward supplies not furnished under sub-section (3) shall be such as may be prescribed and such procedure may include the maximum amount of the input tax credit which can be so availed, not exceeding twenty per cent of the input tax credit available, on the basis of details furnished by the suppliers under the said subsection. (5) The amount of tax specified in the out ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d the relevant information, as contained in the said document, is furnished in FORM GSTR-2 by such person: PROVIDED that if the said document does not contain all the specified particulars but contains the details of the amount of tax charged, description of goods or services, total value of supply of goods or services or both, GSTIN of the supplier and recipient and place of supply in case of inter-State supply, input tax credit may be availed by such registered person. (3) No input tax credit shall be availed by a registered person in respect of any tax that has been paid in pursuance of any order where any demand has been confirmed on account of any fraud, wilful misstatement or suppression of facts. (4) Input tax credit to be availed by a registered person in respect of invoices or debit notes, the details of which have not been furnished by the suppliers under sub-section (1) of section 37 in FORM GSTR-1 or using the invoice furnishing facility, shall not exceed 10 per cent of the eligible credit available in respect of invoices or debit notes the details of which have been furnished by the suppliers under sub-section (1) of section 37 in FORM GSTR-1 or using the invoice furni ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... es of goods or services or both under section 37, shall furnish such details in FORM GSTR-1 electronically through the common portal, either directly or through a Facilitation Centre notified by the Commissioner. (2) The details of outward supplies of goods or services or both furnished in FORM GSTR-1 shall include the (a) invoice wise details of all (i) inter-State and intra-State supplies made to the registered persons; and (ii) inter-State supplies with invoice value more than two and a half lakh rupees made to the unregistered persons; (b) consolidated details of all (i) intra-State supplies made to unregistered persons for each rate of tax; and (ii) State wise inter-State supplies with invoice value upto two and a half lakh rupees made to unregistered persons for each rate of tax; (c) debit and credit notes, if any, issued during the month for invoices issued previously. (3) The details of outward supplies furnished by the supplier shall be made available electronically to the concerned registered persons (recipients) in Part A of FORM GSTR-2A, in FORM GSTR-4A and in FORM GSTR-6A through the common portal after the due date of filing of FORM GSTR-1. (4) The details of inward s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... relating to the form and manner to ascertain the details of inward supplies read as below: 60. Form and manner of furnishing details of inward supplies. (1) Every registered person, other than a person referred to in section 14 of the Integrated Goods and Services Tax Act, 2017, required to furnish the details of inward supplies of goods or services or both received during a tax period under sub-section (2) of section 38 shall, on the basis of details contained in Part A, Part B and Part C of FORM GSTR-2A, prepare such details as specific in sub-section (1) of the said section and furnish the same in FORM GSTR-2 electronically through the common portal, either directly or from a Facilitation Centre notified by the Commissioner, after including therein details of such other inward supplies, if any, required to be furnished under sub-section (2) of section 38. (2) Every registered person shall furnish the details, if any, required under sub-section (5) of section 38 electronically in FORM GSTR-2. (3) The registered person shall specify the inward supplies in respect of which he is not eligible, either fully or partially, for input tax credit in FORM GSTR-2 where such eligibility can ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f the Central Goods and Services Tax Act, 2017 (hereinafter referred to as the CGST Act). 2. To ensure uniformity in the implementation of the provisions of the law across the field formations, the Board, in exercise of its powers conferred under section 168(1) of the CGST Act hereby clarifies various issues in succeeding paragraphs. 3. 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 thereunder. 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. Various issues relating to implementation of the said subrule have been examined and the clarification on each of these points is as under: - Sl No. Issue Clarification .. 3. FORM GSTR-2A being a dynamic document, what would be the amount of input tax credit that is admissible to the taxpayers for a particular tax period in respec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... receding financial year, for the tax periods of February, 2020 to April, 2020. This lower rate of interest shall be subject to condition that due tax is paid by filing return in FORM GSTR- 3B by the date(s) as specified in the Notification. 3. Notification No. 32/2020- Central Tax, dated 03.04.2020 Notification under section 128 of CGST Act for waiver of late fee for delay in furnishing returns in FORM GSTR-3B for the tax periods of February, 2020 to April, 2020 provided the return in FORM GSTR- 3B by the date as specified in the Notification. 4. Notification No. 33/2020-Central Tax, dated 03.04.2020 Notification under section 128 of CGST Act for waiver of late fee for delay in furnishing the statement of outward supplies in FORM GSTR-1 for taxpayers for the tax periods March, 2020 to May, 2020 and for quarter ending 31st March 2020 if the same are furnished on or before 30th day of June, 2020. 5. Notification No. 34/2020-Central Tax, dated 03.04.2020 Extension of due date of furnishing statement, containing the details of payment of self-assessed tax in FORM GST CMP-08 for the quarter ending 31st March, 2020 till the 7th day of July, 2020 and filing FORM GSTR-4 for the financial y ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nterest is subject to the condition that the registered person must furnish the returns in FORM GSTR-3B on or before 24th day of June, 2020. 3. In case the returns in FORM GSTR-3B for the said months are not furnished on or before 24th day of June, 2020 then interest at 18% per annum shall be payable from the due date of return, till the date on which the return is filed. In addition, regular late fee shall also be leviable for such delay along with liability for penalty. 4. How to calculate the interest for late payment of tax for the months of February, March and April, 2020 for a registered person whose aggregate turnover in preceding financial year is above Rs. 5 Crore? As explained above, the rate of interest has been notified as Nil for first 15 days from the due date, and 9 per cent per annum thereafter, for the said months. The same can be explained through an illustration. Illustration:- Calculation of interest for delayed filing of return for the month of March, 2020 (due date of filing being 20.04.2020) may be illustrated as per the below Table: S. No. Date of Filing GSTR-3B No. of days of delay Whether condition for reduced interest is fulfilled ? Interest 1. 02.05.2020 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... charge tax on net basis only, at every link of the value addition chain. To achieve that, it guarantees adjustment of ITC at every link of value addition - to offset the total tax liability arising at any level of value addition experienced, with ITC commensurate/proportionate to the tax already suffered at the immediately previous link of that value addition chain. It further enables payment of any outward tax due from the available ITC, bringing it at par with cash payment of tax due. Thus, it does away with one-to-one reconciliation of transactions, in its day-to-day working. 41. At the same time, at the enforcement level, the entire scheme to avail the ITC is regulated and made subject to the conditions and restrictions as prescribed under the Act and the Rules. The language of section 16 (1) of the Act is clear, to that extent. Thus, the eligibility to Input Tax Credit is governed by sub-Section (2) of Section 16 of the Act. It begins with a non-obstante clause. It provides, no registered person would be entitled to take credit of ITC unless: he has in his possession the Tax Invoice or Debit Note or other tax paying document (as may be prescribed), issued by the supplier; the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... it necessary that the Tax Invoice or Debit Note must be issued by the supplier to the registered person to enable the latter to avail ITC. Also, he must have physically received the goods or services, on which ITC claim may arise. As to the requirement of payment of due tax to the Government, that stipulation has been made subject to the provisions of Section 41of the Act. Read together with Rule 36 of the Rules, the legislature first created a margin of time, obviously involving liability to interest for delays beyond the due date of filing of the monthly return by the supplier, in depositing the due tax with the Government. 45. That general discussion apart, the furnishing of details by the supplier on GSTR-1 as may be reflected on GSTR 2A to the recipient is what engages our attention, directly. 46. Considering the general prescription in law that any monthly return should normally be filed by the supplier (in terms of section 39 of the Act), on or before the 20th day of the following month, it cannot escape judicial recognition that the second proviso to Section 16(2) the Act itself creates a provisional right to the recipient to avail ITC (even after lapse of that shorter tim ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... it to continue in motion without disrupting the journey of value addition being experienced by the goods and services. 50. In view of the above, though the date of filing of the details by the supplier would remain fixed as the 10th day of the following month, at the same time by way of principle it is difficult to acknowledge that ITC could be availed only with reference to that event. Here, it may be emphasized, again in Bharti Airtel Ltd. (supra) (pr.66) the nature of Form GSTR-2A has been recognized to be that of a facilitator. Similar view has also been taken by the Calcutta High Court in Suncraft Energy Private Limited and Anr. Vs The Assistant Commissioner, State Tax, MAT 1218 of 2023 decided on 02.08.2023, upon consideration of the Press Release dated 18.10.2018. We do not find any good reason to take any different view, both for the reasoning of the Calcutta High Court and for our reasoning given above. Therefore, by necessary implication details furnished on Form GSTR-1 are nothing more than a necessary step in that facilitation. Further restrictions and law would have to be seen to test the submission advanced by the learned Additional Advocate General. 51. As a fact co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o and included therein the figure of total ITC claimed at Rs. 8,93,50,40,324.89/- with the monthly figures broken down and specified in the second column. It is also not in dispute that for the months of February to August 2020, the total of eligible credit as per GSTR-2A for the said months arising from GSTR-1 submitted by various suppliers as on the 10th of the following months was Rs. 7,12,21,36,567.80/-. The revenue has added 10% to each of those monthly figures to give effect to Rule 36(4) of the Rules. It has thus reached the figure of eligible ITC Rs. 7,83,43,50,224.58/-. The petitioner having availed higher ITC amount Rs. 8,93,50,40,324.89/- disclosed in GSTR-3B filed by the petitioner for the months of February to September 2020, excess ITC has been deduced at Rs. 1,10,06,90,100.31/-. On the other hand, according to the petitioner, the revenue ought to have looked at the figures of ITC available as per GSTR-2A as they stood in September 2020, being the month when the petitioner was bound to file its return for the tax period August 2020. 56. Therefore, the dispute falls into a very narrow compass - as to the meaning to be given to the first proviso to Rule 36(4) of the Rul ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t proviso to Rule 36(4) of the Rules, in its reply, the petitioner clearly mentioned the figure of ITC reconciled for the period February 2020 to September 2020. That figure was mentioned cumulatively at Rs. 8,86,34,60,752.04/- To that it has further claimed entitlement of 10% additional ITC leading to the figure of eligible ITC Rs. 9,74,98,06,827.24/-. In paragraph no.2 of that reply, it had been submitted as below: That the above rule got further amended to reduce the additional ITC claim percentage to 10% and further to 5% which is currently applicable. Further, in terms of Notification no. 30/2020 Central Tax taxpayer had given option to defer the rule 36(4) provisions related to restrictions of 10% from February-20 to August-20 till August-2020 and can cumulatively make the adjustments related to the month of February-2020 to August-2020 at the time of filing monthly GSTR 3B of September-2020; 60. Next, in paragraphs 47, 50, 51, 52, 53 of the writ petition, it has been stated as below: 47. That the impugned order is erroneous as it denies the input tax credit on the basis of GSTR 2A generated on the date of filing of GSTR 3B i.e. 20th day of the month. While doing so, the impu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mulative basis to arrive at any conclusion. 61. In view of such pleadings made, both at the stage of furnishing of reply as also in the context of the dispute brought before us, it may not be right and in any case it may remain hyper technical to accept or acknowledge the objection being raised by the learned Additional Advocate General that such a case was never set up before the revenue authorities nor it has not been set up before us. On facts, the only foundation for the claim made by the petitioner appears to be on the strength of the first proviso to Rule 36(4) of the Rules. 62. Besides the above, the issue being raised is purely legal. The revenue does not contend that Rule 36(4) is not applicable to the facts of the present case. Both parties agree that Rule 36(4) is clearly applicable to the facts of the present case. They differ widely on the interpretation of that Rule. Therefore, for that reason also, we cannot sustain the objection raised by the revenue that the plea being raised before us is a new plea as may not have been considered by the revenue authorities. On facts, that plea appears to have been raised. Otherwise also, it remains available to the petitioner to b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... crease or addition to size (here quantum) with successive additions without corresponding losses (here deductions). It may be useful to refer to a few dictionary meanings given to the word cumulative . In Oxford English Dictionary, Eleventh Edition, Revised, word 'cumulative' has been defined as under : cumulative ▪ adj. increasing or increased in quantity or degree by successive additions: the cumulative effect of months of drought. The New Lexicon Webster's Dictionary of The English Language, Deluxe Encyclopedic Edition defines the word 'cumulate' as under : cu mu late (kju:mjuleit) press. part. cu mu lating past and past part. cu mu lat ed v.t. to accumulate, heap up, amass ║ v.i. to become massed cu mu la tion n. cu mu la tive (kju:mjulәtiv) adj. gradually increasing by successive additions, cumulative effect ║ tending to accumulate [fr. L. cumulare (cumulatus) fr. c umulus, a heap] 67. Therefore, the condition contained in sub-Rule 4 of Rule 36 that the eligible ITC would not exceed 10% of the eligible credit as per Tax Invoice or Debit Note etc., filed on GSTR-1 would have to be seen cumulatively i.e., with all additions made, taken ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... es to restrict the application of the first proviso to Rule 36(4) of the Rules to the principle contained in the pre-existing Rule. Therefore, while Rule 36(4) may have made a provision to necessarily apply the computation of eligible ITC on a month-tomonth basis, at the same time, a conscious departure was caused by the first proviso thereto, for a fixed period February 2020 to August 2020. It would defeat the very purpose of that proviso if it were to be read to only allow a mathematical computation of the amounts of eligible ITC as they existed on the last date of filing of GSTR-1 for the months of February 2020 to August 2020, individually. 72. The words in accordance with the condition above only indicate the extent to which the registered person may claim ITC more than the eligible credit as per the form GSTR-I - as reconciled up to filing of the return for the month of September 2020 i.e., 110% of the figure obtaining at the relevant time. The mention of Form GSTR-I appearing in the sub-Rule 4 is not by way of a fresh or other stipulation of date on which eligible ITC is to be computed but by way of evidence that must exist as to eligible ITC. If that date would be read for ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... became (fictionally), a single block. The monthly boundaries that otherwise existed within that period were erased to allow the entire period to be seen as one. It is only to effect intended that the words apply cumulatively and cumulative adjustment have been deliberately employed. 77. Second, to give effect to that intent the legislature allowed the registered persons to file their returns on form GSTR-3B for the tax period September 2020 with the cumulative adjustment of ITC for the said months. Read together, that cumulative adjustment is to be seen in the return for tax period of September 2020, only. With the internal monthly boundaries erased by the first push in the proviso, its later part delivers the relief contemplated by the legislature. 78. Once the petitioner was permitted to claim a cumulative adjustment for prior period while filing the return for the later period, clearly it is the date of filing a return for a later period on which the cumulative effect would arise and be given effect to. Any other construction would contradict the plain language used by the legislature. 79. The words in accordance with the conditions above appearing at the end of the first provis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l the suppliers for the said tax period . For that period, the said condition otherwise enforceable in law [by virtue of the language of Rule 36(4)], stood absolutely relaxed. To the extent the Circular dated 11.11.2019 is contrary to the first proviso to Rule 36(4) of the Rules, it would remain unenforceable in law. That principle is well settled. Reference may be made to the decision of the Supreme Court in Tata Teleservices Ltd. V CCE, 2006 (194) ELT 11 (para 10) . 83. There being no other objection including as to alternative remedy, we find, the writ petition deserves to be allowed. 84. At this stage (of the oral order), the learned Additional Advocate General pressed, in any case, the petitioner would be entitled to ITC as on 10.09.2020 and not to the date of filing form GSTR-3B for the month of September 2020 which would be October 2020. In view of the discussion made above, no further discussion is required in the present facts. Yet, the following reasoning given by the revenue authorities has also been referred to by Shri Goyal: It is explicitly clear from the above provisions that ITC shall be claimed in GSTR-3B on the basis of GSTR-2A generated on the due date of filing ..... X X X X Extracts X X X X X X X X Extracts X X X X
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