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Corporate News *  Service tax penalty can’t survive when assessee acted on dept.’s own view of non-taxability: Delhi High Court. *  GST section 74 extended limitation questionable when form 26AS mismatch was already known: Karnataka High Court grants interim relief. *  CGST demand prima facie impermissible after state GST settlement under section 128A: Bombay High Court. *  Supreme Court asks GSTAT to sympathetically consider delay as taxpayers pursued remedy before wrong forum. *  Supreme Court stays Tripura High Court ruling protecting genuine buyers from ITC denial over supplier’s GST default. *  Diary entries alone can’t prove clandestine removal of goods: CESTAT quashes excise penalty on steel trader. *  Customs could investigate preferential tariff claims even before sec. 28DA: Delhi High Court. *  Customs dept. relied on fake AI generated case laws: supreme court quashes Rs. 425.28 crore penalty. *  No GST exemption in affiliation and annual registration charges for admission or conduct Of examinations: GSTAT. *  Mere invoices, cheque payments insufficient to establish genuine movement of goods: GSTAT restores Rs. 43.44 lakh ITC demand. *  Consolidated GST show cause notice covering multiple financial years is not without jurisdiction: Delhi High Court. *  Construction of independent houses on separate plots not taxable as ‘Residential Complex’ without common facilities: CESTAT. *  GST penalty exceeding statutory maximum unsustainable; Allahabad High Court quashes ? 50,000/- penalty after taxpayer filed return and paid late fee. *  GST order against standard chartered bank passed without hearing set aside by Bombay High Court. *  Retracted statements can’t be relied upon without cross-examination: CESTAT quashes gold confiscation. *  Burden to prove misclassification lies on customs department: CESTAT. *  CESTAT quashes Rs. 98 lakh excise demand on clearance of used refractory brick scrap. *  Service tax demand on irrigation works quashed: Karnataka High Court rules sale of goods component not taxable as service. *  GSTAT restores tax and penalty for transporting iron scrap without E-way bill citing intent to evade tax. *  Madras High Court stays GST recovery from directors without opportunity to show cause under section 89. *  Madras high court stays GST recovery notice against directors; finds prima facie case on applicability of section 79(1)(c). *  Procedural lapses can’t justify harsh punishment without serious customs breach: CESTAT quashes customs broker licence revocation. *  Service tax payable on land leasing and sports complex charges: CESTAT. *  Settled customs dispute can’t be reopened through Article 226 challenge to interest liability: Delhi High Court. *  Mere facilitation of customs clearance can’t establish knowledge of smuggling: Madras High Court. *  GST registration cancellation stayed: Allahabad High Court questions 99% ITC utilisation cap under rule 86B. *  Composition scheme lapses automatically on crossing Rs. 1.5 crore turnover: GSTAT. *  Gujarat High Court quashes GST cancellation orders after officer relied on non-existent AI-generated case laws. *  Importers liable for customs duty benefits availed through manipulated scrips: Delhi High Court. *  Procedural E-way bill lapse alone can’t justify penalty where genuine transaction and absence of tax evasion are established: GSTAT.
Subject News *  Documentary evidence dominates probe, further custody unwarranted: mumbai court grants bail in Rs. 22.44 crore customs duty evasion case. *  Business premises can’t remain sealed for non-participation in GST search: Allahabad High Court. *  GST pre-deposit must be refunded proportionately when taxpayer partly succeeds in appeal: Bombay High Court. *  Supreme Court grants 30 days to file GST appeal; keeps pre-deposit issue open due to deposit in parallel CGST proceedings. *  GST demand can’t exceed amount proposed in SCN: Allahabad High Court quashes Rs. 20.47 Crore order. *  Hundreds-of-crores GST demand and heavy 10% pre-deposit no ground to bypass statutory appeal: Punjab & Haryana High Court. *  Delhi High Court refuses to entertain challenge to gold confiscation due to statutory appeal remedy and unexplained delay. *  Procedural error in customs broker licence inquiry can be rectified through remand: Delhi High Court. *  GSTR-2A mismatch alone can’t justify ITC denial without invoice-wise verification; personal hearing mandatory: GSTAT. *  GST order passed without uploading personal hearing notices violates sec. 75(4): Allahabad High Court. *  TAX EVASION - Sec. 74 GST SCN quashed for not spelling out fraud, wilful misstatement or suppression: Allahabad High Court. *  STPI’s SOFTEX certification and NoC charges taxable as business support services: CESTAT. *  Suspicion can’t replace proof: CESTAT quashes penalty in alleged gold-smuggling operation. *   Limitation runs from communication of order: Madras High Court upholds rejection of delayed GST Appeals. *  Rajasthan High Court quashes GST demand over unsigned show cause notice. *  ITC recovery upheld where supplier failed to deposit GST: Rajasthan High Court. *  Customs commissioner’s empowered to make port trust liable for duty on pilfered goods: Supreme Court. *  Rectification proceedings can’t be used to challenge an uncontested GST assessment through a writ petition: Andhra Pradesh HC. *  GST proceedings against deceased proprietor unsustainable without notice to legal heir: GSTAT. *  Mere availment of ineligible self-assessed ITC doesn’t amount to suppression without evidence of fraud or wilful misstatement: GSTAT. *  Disposal of mining overburden by entity authorised by mining lease holder constitutes taxable service: CESTAT. *  Toll plaza data not mandatory for ITC refund: GSTAT. *  Disputed GST fraud allegations require investigation: Punjab and Haryana High Court makes interim bail absolute in alleged fraud and GST fraud case. *  Non-manufacturer contractor liable to deposit excess excise duty collected from buyer: CESTAT. *  GST order can’t reject taxpayer’s reply as “not satisfactory” without reasons: Madhya Pradesh High Court. *  Uncorroborated statements can’t establish alleged diversion of duty-free goods: CESTAT. *  Erection services were not liable to service tax prior to 10th september 2004: CESTAT. *  Sec. 74 GST notice must spell out statutory ingredients for invoking extended tax demand proceedings: Allahabad High Court. *  No jurisdictional bar under section 6(2)(b) in parallel CGST SGST proceedings: Delhi High Court refuses to bypass GST appeal remedy. *  Madras High Court remits GST demand for fresh adjudication after taxpayer claims it was unaware of SCN following business closure.  

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GST UPDATE ON LACK OF STATUTORY BACKING FOR DENIAL OF REFUND FOR NON-REFLECTION IN GSTR-2A 51/2020-21

GST UPDATE ON LACK OF STATUTORY BACKING FOR DENIAL OF REFUND FOR NON-REFLECTION IN GSTR-2A 51/2020-21
GST UPDATE ON LACK OF STATUTORY BACKING FOR DENIAL OF REFUND FOR NON-REFLECTION IN GSTR-2A
The GST law as envisaged by the law makers was to introduce the matching concept for allowing input tax credit by the recipient. However, due to absence of sufficient technological infrastructure, the matching concept could not be implemented in GST regime till date. However, time and again, the government is emphasising on reflection of input tax credit in GSTR-2A in order to legalise the availment of input tax credit by the recipient. The ad-hoc requirement of reflection of invoice in GSTR-2A in order to avail input tax credit when it is clear that mere filing of GSTR-1 by the supplier does not indicate payment of taxes to the government is totally irrational. Nevertheless, in the present update, we wish to discuss the sanction of refund on account of accumulated input tax credit vis a vis requirement of reflection of input tax credit in GSTR-2A.
The clarification issued vide Circular No. 125/44/2019-GST, dated 18.11.2019 provided that while claiming refund of accumulated input tax credit, the assessees would be eligible to claim refund of invoices not reflected in GSTR-2A by uploading/furnishing hard copies to the refund sanctioning authority. However, recently, this circular has been modified vide Circular No. 135/05/2020 dated 31.03.2020 to provide that the refund of accumulated ITC shall be restricted to the ITC as per those invoices, the details of which are uploaded by the supplier in FORM GSTR-1 and are reflected in the FORM GSTR-2A of the applicant which is very harsh and unreasonable as the refund claim would be denied inspite of the fact that all the conditions for availing input tax credit under section 16(2) of the CGST Act, 2017 have been satisfied.
The above guideline in the circular restricts refund only to the extent of invoices available in GSTR-2A. This guideline is in complete violation of Rule 36(4) recently introduced which allows input tax credit upto 110% of the eligible ITC reflected in GSTR-2A. When Rule allows additional 10% ITC, then the refund claim cannot be denied for the invoices which are not reflected in GSTR-2A.



Restricting refund of ITC to the invoices uploaded by supplier in 2A is again in violation of Rule 89 which takes into account full ITC for a period. The Rule 89 of CGST Rules, 2017 prescribing formula also defines the meaning of “Net ITC” as input tax credit availed on inputs during the relevant period and does not distinguishes the input tax credit not reflected in GSTR-2A. Therefore, the moot question is that can clarification provided by circular ignore the provisions contained in respective Rule 89 of the CGST Rules, 2017?
 
It is pertinent to mention that the refund mechanism does not allow filing of refund claim for particular period again in subsequent month. Furthermore, the “Net ITC” means ITC during relevant period for which refund is claimed. If the refund claim is being denied of certain invoices which were not reflected in GSTR-2A, the question arises is that how will the assessee claim refund of such invoices subsequently when such invoices are reflected in their GSTR-2A at future point of time. There is no answer for this inbuilt hardship faced by the assessee on implementing the clarification issued by the circular.
 
At present, there is no mechanism to file revised refund or file a supplementary refund application for any month. Moreover, Circular No. 110/29/2019 – GST dated 03.10.2019 has been issued clarifying that if the person filed Nil refund mistakenly and no refund has been filed for the subsequent period , then he can file the refund claim under “Any Other” category”. Therefore, only nil return filers have been provided with the option to file refund claim again under “any other” category in subsequent month.
 
Another problem that arises is the date of application of the clarification of this circular. Whether the clarification can be used to recover the refund claim already sanctioned to the assessees even when input tax credit was not reflected in their GSTR-2A on the basis of invoices uploaded by them according to prior clarification? Clarifications issued by circulars are treated as having retrospective effect and so can department use this adverse clarification for recovering the refund sanctioned to the assessees even when input tax credit were not being reflected in their GSTR-2A?

We all know that the data reflected in GSTR-2A is dynamic and changes on real time basis. The moot question is that the circular is silent on the procedure to claim refund of input tax credit in cases where the invoices not reflected in GSTR-2A have been subsequently uploaded by the supplier at future point of time. In our opinion, the circular cannot take away the right of assessee to claim refund merely for non-reflection of invoices in GSTR-2A.

This circular has created havoc among assessees as already the refund sanction process takes considerable time and such restrictions will block their working capital for indefinite period. When the Rule 36(4) allows 10% extra credit then how can refund of invoices not reflected in GSTR-2A be denied entirely, that too by a circular without any statutory backing. We request government to re-consider their decision to deny refund of input tax credit pertaining to invoices not reflected in GSTR-2A as the same is arbitrary and unreasonable, that too, no supported by provisions of GST Law. 
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