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Corporate News *  The GSTN has issued an Advisory dated 21.04.2026 about the introduction of an Offline Tool for the Invoice Management System (IMS)  *  CBIC extends due dates for filing of FORM GSTR 3B  for the month of April 2026 *  Interest cannot be imposed in adjudication order, if not demanded/quantified in show cause notice : Allahabad HC *  Wheelchairs with toileting facility eligible for exemption: CESTAT affirms customs duty exemption to importer *  Industries urge GST council to allow inverted duty refunds on input services *  Tamil Nadu GST dept introduced virtual hearing facility for GST appeals under under section 107 of the TNGST act: detailed guidelines  *  CIC urges authorities to implement GST evasion complaint tracking system *  Even if the assessee opts "NO" for personal hearing in form DRC-06 ,The mandatory requirement under section 75(4) to grant opportunity of hearing cannot be waived:Gujarat High Court  *  Glufosinate imports curbs imposed by govt *  Government extends Re-import period for exported cut & polished diamonds *  CIC flags lack of tracking system for tax evasion complaints,urges GST authorities to improve transparency *  No Custodial Interrogation needed in GST fraud case based on documentary evidence already in Department's Possession : Chattisgarh HC *  Orders under section cannot be sustained if passed without considering the taxpayer's objections and without granting a personal hearing:Gujarat High Court *  Mere cancellation of supplier's registration cannot,by itself,justify denial of ITC or cancellation of the recipient's registration:Bombay High Court *  High Court sets aside GST notice citing factual errors and natural justice violations *  Provisional Bank Attachment under Section. 110 of Customs Act Unsustainable Beyond Statutory period without Extension order: Bombay HC orders to defreeze accounts *  Post Clearance MRP Alteration by Distributor Does not attract Differential Customs Duty: CESTAT *  DGFT Expands scope of 'Screws' classification under RoDTEP Scheme  *  E-way bills surze to all time high of 140.6 million in March *  GST Exemption Allowed on Pure Labour Services for Standalone Houses: AAR  *  GST Payable Only on Margin in Second-Hand Car Sales, Subject to Strict Conditions and No ITC Claim: AAR *  DGFT rolls out procedure for allocation of calcined coke *  GST portal update : Pre-deposit amount now editable in Appeals *  J&K HC declared TMT scrap a 'Specified Good' eligibile for GST refunds under Support Scheme  *  Pigmy agents are employees of banks; no GST can be levied on commission  paid to them : Karnataka HC *  DGFT Revises HS Code Description for Screws Under RoDTEP *  GST Registration Cancellation Invalid Without Proper Service of Notice: Allahabad High Court. *  Bengaluru CGST | GST Backlog Appeals Deadline Fixed at June 30, 2026 *  No Time Bar on Refund of Service Tax for Services Not Rendered: CESTAT  Remands Indiabulls Case for Unjust Enrichment Check. *  Supreme Court Holds Renewable Energy Incentive Must Benefit Generators, Not Be Adjusted in Tariff
Subject News *   Delhi HC Quashes Order, Says Reminder Cannot Validate Improperly Served GST SCN *  KARNATAKA HIGH COURT REMANDS GST SHORTFALL MATTER DUE TO ABSENCE OF PERSONAL HEARING   *  CESTAT cancels confiscation and penalties on imported computer cabinet cases: Custom duty restricted to 111 surplus units *  Deposit of tax during search or investigation cannot be treated as 'Voluntary Payment' : Bombay High Court *  Section 76 of the CGST cannot be invoked where the tax has already been duly deposited, even if through another registration of the same entity: Madras High Court *  Sec 74 allows use of material regardless of source; illegality or flaws in section 67 search do not vitiate valid adjudication: HC *  Inter-State transfer of ITC on Amalgamation permissible as given under section 18(3) read with rule 41 of the CGST rules, 2017: Gujarat High Court *  HC: No GST on commisson paid to Pigmy Agents *  IGST refund denial on illegible bill of lading invalid absent chance to furnish docs; merit reconsideration in appeals directed: HC *  ITC is not admissible on GST paid on leasehold rights of land used fpr setting up an air seperation plant: AAAR,Tamil Nadu *  GST: No penalty under Section 74 after voluntary ITC reversal due to non-existent supplier : High Court *  TN AAAR denies GST ITC on Land Lease under Sec. 17(5)(d) for setting up plant and machinery *  GST proceedings quashed as notices sent to old address, despite updated address in registration *  Importer Can’t Be Penalised for Alleged IGCR Procedural Lapses Without Evidence of Departmental Error: CESTAT *  Structured Healthcare Training Not ‘Charitable Activity’, 18% GST Payable: AAR  *  CESTAT As The Appellate Authority For Central Sales Tax Disputes: A Paradigm Shift Under Finance Act, 2023 *   Rs. 25K Cost Imposed On SGST Joint Commissioner for Attaching Bank  Accounts Without Forming Mandatory “Opinion”: Bombay HC *   Ex-Parte GST Order Without Hearing Violates Natural Justice: Karnataka  High Court Quashes Adjudication and Bank Attachment.  *   Retrospective GST Cancellation Can’t Invalidate Genuine Transactions:  Jaipur Commissioner (Appeals) Quashes Rs. 95,670 ITC Demand. *   GST Pre-Deposit Non-Compliance: Allahabad High Court Allows Appeal  Subject to Rs. 30 Lakh Balance Deposit, Recognises Offline Filing. *  Documentary Nature of Evidence: Allahabad High Court Grants Bail in Rs. 32.66 Crore Fake ITC Fraud Case *  Supreme Court Flags Systemic Bias in Army’s Permanent Commission Process for Women Officers *  Re-Determination of Land Compensation Can Be Based on Appellate Court Awards, Clarifies Scope of S. 28-A: Supreme Court. *  Supreme Court Imposes Rs. 5 Lakh Costs On Rent Authority Officer For Acting Beyond Jurisdiction. *  DGGI Meerut | Court Denies Bail to Accused in Claiming Fake ITC And Export Refunds *  Denial of GST Rate Revision Benefit to Contractor Violates Article 14: Rajasthan HC *  GST Registration Cancellation for Non-Filing of Returns: Gauhati High Court Directs Restoration on Compliance. *   Supreme Court Quashes FEMA Adjudication Orders, Revives Proceedings at  Show Cause Stage. *   Higher Rank, Harsher Punishment Justified: Supreme Court Restores Dismissal  of Bank Manager in Misappropriation Case. *   Limitation for Export Refund to Be Counted from Foreign Exchange Realisation,  Not From Export Invoices Issuance: CESTAT  

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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.

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