Chartered Accountant
Bookmark and Share
click here to subscribe our newsletter
 
 
Corporate News *  Dept. Can’t Classify Product as Zarda Scented Tobacco After Repeatedly Approving It As Chewing Tobacco: CESTAT *  Mere Uploading Of GST Order On Portal Is Not “Valid” Service: Tripura HC *  CGST Can Proceed Even If SGST Closed Similar Case Earlier: Delhi HC *  SC upholds 28% GST on online gaming with retrospective effect. *  West Bengal Govt cuts E-way Bill Threshold limit to Rs. 50,000 for intra-state goods movement. *  Criminal Prosecution Under Central Excise Act Can’t Continue After CESTAT Sets Aside Duty Demand on Merits: Punjab & Haryana High Court. *  Madras High Court Quashes GST Assessment Orders for Denial of Personal Hearing; Remands Matter Subject to 10% Deposit *  Ex Parte GST Order: Madras High Court Directs Immediate Removal of Bank/ITC Attachment Upon 25% Deposit *  J.K. Cement Receives GST Demand Order of Rs 8,02,113/- from Ahmedabad Tax Authority *  Delhi Police EOW Busts Alleged Rs. 128 Crore GST Fake Invoice Network. *  REPLY TO SCN CAN’T BE TREATED AS “EMPTY FORMALITY”: ORISSA HIGH COURT QUASHES GST DEMAND OF RS. 57.30 LAKH *  Challenge to CGST Provisions restricting ITC to Bonafide Purchasers : Allahabad HC issues notice *  CBIC Notifies Revised Customs Tariff Values for Edible Oils, Gold, Silver, Brass Scrap and Areca Nuts *  Delhi HC Orders Removal of GST Attachment After Statutory 1 Year Period Expired *  GSTAT Extends Relaxed Appeal Filing Guidelines till December 31, 2026 *  AO fails to Provide Import - Export Data from DGFT to Taxpayer for Reconciliation *  Gold, Silver Imports To Get Costlier As Govt Raises Customs Duty To 10%  *  GSTAT Enables Pre-Payment Access to Document Upload and Checklist for GST Appeal Filing *  GST Portal Restrictions Can’t Override Statute: Gujarat HC Allows Cross-State Transfer Of CGST ITC After Amalgamation *  Centre Revises HS Codes for Large Diameter Steel Pipes Used in Oil & Gas Pipelines *  Customs Duty Liability Arises On Warehouse Clearance Date: Supreme Court *  Government lifts export ban on de-oiled rice bran *  CESTAT Grants 12% Interest on Pre-Deposit for Investigation from Date of Deposit till Refund and Denies Interest on Interest. *  Government Overhauls GST Classification Framework for Non-Alcoholic Beverages; Fruit Juice Drinks, Milk-Based Beverages and Caffeinated Drinks to Attract Revised 5% and 40% GST Rates from May 1, 2026 *  India’s gross GST collections hit a record Rs 2.42 lakh crore in April, up 8.7% *  Customs clearance stalled, revenue hit over MRP dispute *  Shipping Corporation explores Middle East routes as Hormuz tensions disrupt cargo movement *  India, Kenya signs MoU for exchange of pre-arrival customs information *  No demand of Taxes under Reverse Charge if Tax Already Discharged by Service Provider under forward charge *  The India-New Zealand Free Trade Agreement, signed "once-in-a-generation" deal that eliminates tariffs on 100% of Indian exports to New Zealand
Subject News *  Consignment Sales Can’t Be Reclassified as Inter-State Sales Based on Pre-Agreement Evidence: CESTAT *  Exporter Can’t Be Denied Advance Authorization Benefit Due To ICEGATE Technical Glitch: Delhi High Court *  No GST Demand For Mere Wrong Set-Off Of IGST Credit Under CGST And SGST Heads: Kerala HC. *  Cenvat Credit Can’t Be Denied on Input Services Having Nexus With Manufacturing Activities: CESTAT *  Pending Proceedings Can’t Survive Without Saving Clause: Calcutta High Court Quashes GST Demand of Rs. 6.28 Crore After Omission of Rule 96(10) *  Madras HC Quashes GST Demands on TASMAC (Tamil Nadu State Marketing Corporation) Bar Licence Fee *  GST Proceedings Cannot Survive Omitted Rule Without Saving Clause: Calcutta HC *  Provisional Release Can’t Be Denied Solely On Dept. Suspicion Of Misclassification And Undervaluation Of Imported Goods: CESTAT *  Businesses Should Not Be Kept Outside GST Regime Without Due Process: Gauhati High Court *  Punjab & Haryana HC Directs Reconsideration of Contractors’ Claim for Additional GST Payment After Tax Rate Hike From 12% to 18% *  S. 108 Statements Can’t Be Sole Basis Without Following Section 138B Procedure: CESTAT *  Bombay High Court Frames Key Questions on Mandatory Distribution of ITC U/s 20 CGST Act *  Filing of Annexure-B for Refund Applications involving Accumulated ITC using the offline utility in GST portal: GSTN *  No Service Tax on Parent Company’s Un-Invoiced Cost Allocations Without Actual Service or Consideration: CESTAT  *  Calcutta High Court Upholds GST Classification of Polypropylene Leno Bags as Plastic Products *  DRC-01 Summary Can’t Replace Mandatory SCN: Gauhati High Court *  GSTAT Issues Major Bench Allocation Framework; All Appeals to First Go Before Division Bench *  ITC Blocking Without Reasoned Order Violates Rule 86A; Punjab & Haryana HC Directs Release of Credit *  Allahabad HC Refuses Bail to CGST Superintendent In Rs. 70 Lakh Bribery Case *  S.130 Can’t Be Invoked Without Prior Tax Determination U/s 73/74: Allahabad High Court Quashes GST Confiscation Proceedings *  SC grants Bail to Rs 54cr GST case  *  Karnataka HC Sets Aside Duplicate GST Orders, Orders Fresh Hearing on GSTIN Cancellation *  DRC-01 Summary Can’t Replace Mandatory SCN: Gauhati High Court *  Transfer Of Unutilized ITC After Amalgamation - Supreme Court Issues Notice *  PUNJAB & HARYANA HC QUASHES GST CANCELLATION NOTICE FOR FAILURE TO PROVIDE CBIC ENQUIRY REPORT *  LICENSE FEE, TECHNICAL ASSISTANCE CHARGES NOT INCLUDIBLE IN CUSTOMS VALUE UNLESS THEY ARE A CONDITION OF SALE: CESTAT *  DELHI HC ORDERS REMOVAL OF GST ATTACHMENT AFTER STATUTORY 1 YEAR PERIOD EXPIRED *  CUSTOMS BROKER CAN’T BE FAULTED JUST BECAUSE EXPORTER’S GST REGISTRATION WAS PREVIOUSLY CANCELLED: CESTAT   *  Supreme Court Dismisses Review Plea Against Delhi HC Ruling Holding Real Operator Behind Fake GST Firms Liable As ‘Taxable Person  *  GST Appeal Can’t Be Rejected Merely Because DRC-07 Was Not Uploaded On Portal: Bombay High Court  

Comments

Print   |    |  Comment

GST UPDATE ON LACK OF PROVISIONS FOR RECOVERY OF TRANSITIONAL CREDIT 60/2020-21

GST UPDATE ON LACK OF PROVISIONS FOR RECOVERY OF TRANSITIONAL CREDIT 60/2020-21

 

The saga of carry forward of erstwhile credit into the GST regime is being still continued, even at the time when we will be celebrating 3rd Anniversary of GST in the coming month. The transition of credit pertaining to erstwhile laws has not been smooth enough and the inability to file prescribed TRAN-1 within the stipulated time period is being disputed with relief provided by the Hon’ble Delhi High Court in the case of Brand Equity Treaties Ltd. However, the dispute has not end in light of the retrospective amendment made in section 140 and the decision of Delhi High Court being challenged before the Supreme Court. Nonetheless, in the present update we will discuss the provisions that will be invoked by the revenue authorities in case where wrong credit has been availed as “transitional credit” under the GST regime.

 

Before discussing the provisions of section 73/74 of the CGST Act, 2017, it is pertinent to discuss certain provisions relating to transitional credit. The first and foremost question is whether the “transitional credit” availed by the assessees under GST regime is to be construed as “input tax credit” as the procedural mechanism available on the GST portal merges the erstwhile credit of Central Excise and Service Tax as “Central Tax” and the VAT credit as “State Tax” and the transitional credit becomes the part of the common pool of input tax credit in the electronic credit ledger on the GST portal. It is observed that in GST Law, it is possible that utilities available on GST portal and the provisions of Act are not in consonance with each other and so reference is required to be made to the definition of input tax credit as stated in section 2(63)  of the CGST Act, 2017 according to which “input tax credit” means the credit of input tax. Furthermore, the term “input tax” is defined in section 2(62) of the CGST Act, 2017 as follows:-

(62) “input tax” in relation to a registered person, means the central tax, State tax, integrated tax or Union territory tax charged on any supply of goods or services or both made to him and includes—

 

(a) the integrated goods and services tax charged on import of goods;

(b) the tax payable under the provisions of sub-sections (3) and (4) of section 9;

(c) the tax payable under the provisions of sub-sections (3) and (4) of section 5 of the Integrated Goods and Services Tax Act;

(d) the tax payable under the provisions of sub-sections (3) and (4) of section 9 of the respective State Goods and Services Tax Act; or

(e) the tax payable under the provisions of sub-sections (3) and (4) of section 7 of the Union Territory Goods and Services Tax Act,

 

but does not include the tax paid under the composition levy;

 

On perusal of the above definition, it is clear that transitional credit is not to be considered as “input tax credit” under GST Law. In this context, in order to further substantiate this point, reference may be made to clarification issued vide Circular No. 125/44/2019-GST dated 18.11.2019 wherein it has been clarified in paragraph no. 50 that the transitional credit pertains to duties and taxes paid under the existing laws and so the same cannot be said to have availed during the relevant period so as to consider it as part of “Net ITC” and so no refund of unutilised transitional credit is admissible under section 54(3) of the CGST Act, 2017.

 

Therefore, it is clear that transitional credit is not “input tax credit” as per GST Law. Now, the question arises is whether the provisions of section 73/74 of the CGST Act, 2017 can be invoked for demanding wrongly availed transitional credit? In this respect, it is worth noting that the provisions of section 73/74 pertain to determination of tax not paid or short paid or erroneously refunded or input tax credit wrongly availed or utilised. It is submitted that when the transitional credit is not considered as “input tax credit” under GST Law, then whether the provisions of section 73/74 of the CGST Act, 2017 can be invoked for demanding and recovering wrongly availed transitional credit? If answer is No, then whether the show cause notice for demanding wrongly availed transitional credit will be issued under erstwhile laws? Well, when the credit of erstwhile regime merges into the common pool of CGST and SGST in the electronic credit ledger after filing TRAN-1 and assumes the character of CGST and SGST, issuance of show cause notice under erstwhile laws would also be challenging task for the revenue authorities as utilisation of such wrongly availed transitional credit is in GST regime. One may argue that revenue authorities may certainly raise demand for short payment of tax if the said wrongly availed transitional credit has been utilised.

In this context, reference is also made to Rule 121 of the CGST Rules, 2017, which states that the transitional credit may be verified and proceedings under section 73 or section 74 shall be initiated in respect of any credit wrongly availed, whether wholly or partly. It is pertinent to mention that neither the section 73/74 nor the transitional provisions contained from section 139 to 142, expressly indicate that the wrongly availed transitional credit will be demanded and recovered under section 73/74 of the CGST Act, 2017. Therefore, in the absence of statuary provisions in the Act for recovery provisions pertaining to transitional credit when the said credit is not covered by the term “input tax credit”, the viability of Rule 121 is certainly doubted. This is for the reason that the Rules are accessories to any law and provisions of Rule cannot go beyond the statutory provisions stated in any Law.  In our opinion, perhaps, this is drafting lacunae in section 73/74 of the CGST Act, 2017 which may be corrected by resorting to retrospective amendment.


This is solely for educational purpose.

You can reach us at www.capradeepjain.com, at our facebook page on https://www.facebook.com/GSTTODAYBYPRADEEPJAIN/as well as follow us on twitter at https://www.twitter.com/@capradeepjain21.

Department News


Query

 
PRADEEP JAIN, F.C.A.

Head Office : -

Address :
"SUGYAN", H - 29, SHASTRI NAGAR, JODHPUR (RAJ.) - 342003

Phone No. :
0291 - 2439496, 0291 - 3258496

Mobile No. :
09314722236

Fax No. :0291 - 2439496


Branch Office : -

Address:
1008, 10th FLOOR, SUKH SAGAR COMPLEX,
NEAR FORTUNE LANDMARK HOTEL, USMANPURA,
ASHRAM ROAD, AHMEDABAD-380013

Phone No. :
079-32999496, 27560043

Mobile No. :
093777659496, 09377649496

E-mail :pradeep@capradeepjain.com