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Corporate News *  Missing seized records must be considered while testing ITC claim; duplicate GST demands ordered corrected: Delhi High Court. *  GST appeal can’t be rejected without addressing taxpayer’s grounds: Allahabad High Court. *  Surplus IGST credit can offset CGST, SGST shortfall: GSTAT. *  GST refund can’t be denied when cancelled airfares are returned with tax: GSTAT. *  3 Hearing notices issued within 2 minutes: Gujarat High Court flags portal flaw, seeks report. *  GSTR-9, GSTR-9C filing for FY 2025-26 enabled; pending GSTR-1 and GSTR-3B must be filed first. *  Dupattas are exempt fabrics, can’t be taxed as fibres at 4%: Madras High Court. *  Full transitional credit allowed on capital goods received after GST rollout: GSTAT denies Rs. 6.99 lakh export duty credit. *  GST return mismatch alone can’t justify fraud proceedings: GSTAT orders fresh adjudication under section 73. *  Supplier found non-existent later can’t alone justify input tax credit denial: GSTAT. *  GST interest stops once tax reaches government account, can’t run until return filing: GSTAT. *  Cancelled flat booking- GST refund can’t be denied without excluding COVID period from limitation: GSTAT. *  India notifies rules of origin for India–New Zealand FTA. *  Incomplete E-bike kits classifiable as complete vehicles, but not eligible for CKD duty concession: CESTAT. *  Same GST rate on main input and output can’t by itself bar inverted duty refund: GSTAT. *  Unjust enrichment doesn’t apply to customs refunds from assessments finalised before July 13, 2006: Gujarat High Court. *  CENVAT credit can’t be denied solely because plant And machinery are embedded in earth: Karnataka High Court. *  DFIA exports ineligible for RoDTEP benefits; customs directs repayment with applicable interest. *  Second E-Way bill alone doesn’t prove another supply: GSTAT. *  Bail denied in Rs. 1.19 crore fake GST refund case over risk of accused absconding again: Punjab and Haryana High Court. *  GST registration can be restored after revocation deadline if outstanding dues are paid: Gauhati High Court. *  Multiple GST proceedings over same suppliers: Calcutta High Court directs dept. to share findings for adjudication. *  E-Governance portal services not OIDAR, fixed deposit interest not taxable: CESTAT. *  Rs. 500 Stamp duty required on authority letters for CAs, CMA and GST practitioners in Pune GST division.  *  Rs. 1.10 crore GST refund must be paid in cash after business closure: Allahabad High Court. *  Godown rent attracts 18% GST even when used exclusively for exempt agricultural warehousing: AAR. *  GST portal launches "Multi-State Registration" facility: one master TRN for registration applications across multiple States/UTs. *  RoDTEP scheme extended till 31st December, 2026.  *  Mere disagreement with order can’t override Rs. 20 lakh appeal limit: GSTAT. *  Customs interest can’t be backdated before confiscation liability is determined; nearly 8 year period excluded: Delhi High Court.
Subject News *  GST summons: anticipatory bail maintainable without arrest order, but relief denied in evasion case: Allahabad High Court. *  GST Appeal can’t be decided without hearing taxpayer’s objections to fresh evidence: Allahabad High Court. *  GST ITC can’t be reversed merely because supplier grants discount without reducing tax liability: GSTAT. *  Mere quoting of GST provision is not a valid charge: GSTAT quashes ITC denial. *  Personal hearing mandatory before adverse GST order, even without taxpayer’s request: Rajasthan High Court. *  Parallel bail pleas without full disclosure amount to abuse of process Rs. 43.08 crore GST case sent for fresh hearing: Supreme Court. *  GST refund based on unchallenged advance ruling can’t be recovered using later circular: GSTAT. *  Payment of GST alone doesn’t end interest and penalty liability when tax and interest remain unpaid beyond 30 days of notice: GSTAT. *  GST demand over builders’ 80% procurement rule requires reasoned adjudication: GSTAT. *  Eligible ITC doesn’t automatically entitle taxpayers to compensation cess refund on domestic sales: GSTAT. *  GST confiscation order passed before reply deadline invalid: GSTAT. *  GST interest can’t be retained after tax refund on delayed export receipts: Punjab & Haryana High Court. *  GST appeal can’t be dismissed over pre-deposit shortfall without opportunity To respond: Bombay High Court. *  DGGI SCN can’t be challenged before reply and adjudication:Chhattisgarh High Court. *  GST input tax credit can’t be denied solely due to supplier’s retrospective registration cancellation: GSTAT. *  GST notice must explain fraud allegations; merely repeating section 74 Is not enough:  Himachal Pradesh High Court. *  Audit detection alone can’t justify GST fraud penalty; specific suppression must be proved: GSTAT. *  GST order uploaded only under ‘Additional Notices’ tab without separate intimation set aside: Calcutta High Court. *  Service Tax appeal can’t be rejected for missing pre-deposit proof when payment is already recorded: CESTAT. *  SGST dept. can’t hear appeal against CGST order: Calcutta High Court. *  Mere dispatch of tax order can’t prove service or make appeal time-barred: CESTAT. *  Dealer incentives can’t be taxed merely on ledger entries: CESTAT. *  DGFT orders quashed for failure to supply DRI letter relied upon in SCN: Bombay High Court. *  GST penalty u/s 122(1A) can’t apply to Pre-2021 transactions; unregistered beneficiaries also covered: Delhi High Court. *  Expired E-way bill caused by wrong PIN code can’t justify GST penalty without intent to evade tax: GSTAT. *  Used railway rails can’t be taxed as track material without proof they are fit for reuse: CESTAT. *  Earlier DGGI notice doesn’t bar separate GST demand on different issue: Delhi High Court. *  ITC dispute involves no question of law: GSTAT directs appeal to Vice-President. *  Earlier DGGI notice doesn’t bar separate GST demand On different issue: Delhi High Court. *  No E-way bill required for interstate goods movement in november 2017: GSTAT quashes detention and penalty.  

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GST UPDATE ON NEW ORDER OF UTILISATION OF CREDIT

GST UPDATE ON NEW ORDER OF UTILISATION OF CREDIT
Today we are sharing an update on the new order of utilization of input tax credit. A few days ago, government had inserted sections 49A and 49B in the CGST Act 2017 through CGST Amendment Act 2018 which came into effect from 01.02.2019. We had prepared an update on the same in which comparision was made between the existing and the new manner of utilization of input tax credit and it was pointed that the new mechanism is leading to payment of tax in cash under SGST inspite of credit balance available in CGST head.This update seeks to discuss the manner of utilisation of input tax credit as per Rule 88A of the CGST Rules, 2017.
Before proceeding further, let us recall the provisions of newly inserted Sections 49A and 49B.
49A. UTILISATION OF INPUT TAX CREDIT SUBJECT TO CERTAIN CONDITIONS:- Notwithstanding anything contained in section 49, the input tax credit on account of central tax, State tax or Union territory tax shall be utilised towards payment of integrated tax, central tax, State tax or Union territory tax, as the case may be, only after the input tax credit available on account of integrated tax has first been utilised fully towards such payment.
49B. ORDER OF UTILISATION OF INPUT TAX CREDIT:- Notwithstanding anything contained in this Chapter and subject to the provisions of clause (e) and clause (f) of sub-section (5) of section 49, the Government may, on the recommendations of the Council, prescribe the order and manner of utilisation of the input tax credit on account of integrated tax, central tax, State tax or Union territory tax, as the case may be, towards payment of any such tax.”.
Now a new notification 16/2019-Central tax has been issued on 29th March 2019 by the government making changes in the Central Goods & Service Tax (Rules) 2017. This notification has inserted a new rule 88A dealing with the provisions of order of utilisation of credit which is in line with the newly inserted section 49A stated above. New Rule 88A is stated below as follows:-
“Rule 88A. Order of utilization of input tax credit.-
Input tax credit on account of integrated tax shall first be utilised towards payment of integrated tax, and the amount remaining, if any, may be utilised towards the payment of central tax and State tax or Union territory tax, as the case may be, in any order:
Provided that the input tax credit on account of central tax, State tax or Union territory tax shall be utilised towards payment of integrated tax, central tax, State tax or Union territory tax, as the case may be,only after the input tax credit available on account of integrated tax has first been utilised fully.”.
The new Rule 88A provides that the ITC of IGST shall be utilised first towards discharging IGST liability and further gives an option to the taxpayers to offset the remaining balance of IGST ITCagainst liability of CGST/SGST/UTGST in any manner.In our point of view, as per Rule 88A credit can be utilized in the following manner:
  1. The credit balance of IGST is to be exhausted for discharging tax liability for IGST and thereafter, the remaining balance of IGST is to be used for discharging CGST or SGST or UTGST in any manner as per the choice of assessee. It is to be noted that firstly the ITC balance of IGST is required to be exhausted completely.
  2. Thereafter, the balance of CGST is to be exhausted for discharging tax liability of CGST and IGST.
  3. Lastly, the balance of SGST is to be exhausted for discharging tax liability of SGST and IGST.
 
This interpretation is explained with the help of same example as taken by us in our earlier update on utilisation of credit.
 
 
 
INPUT TAX CREDIT BALANCE     
IGST CGST SGST
5,00,000 10,00,000 10,00,000 + 1,00,000 transitional credit
 
The balance of SGST is more as transitional VAT credit was carried forward in the GST regime.
OUTPUT TAX LIABILITY
IGST CGST SGST
2,00,000 12,00,000 12,00,000
 
As per the amendment applicable w.e.f. 01.02.2019, the liability shall be discharged through credit in the following manner:-
 
PARTICULARS IGST CGST SGST
Output Tax Liability 2,00,000 12,00,000 12,00,000
Less: IGST credit utilized (2,00,000) (3,00,000) -
Less: CGST credit utilized - (9,00,000) -
Less: SGST credit utilized -
 
- (11,00,000)
Liability to be paid in cash 0 0 1,00,000
ITC Carried Forward 0 1,00,000 0
 
After the insertion of Rule 88A of the CGST Rules, 2017, the order of utilisation of credit will be as follows:
 
PARTICULARS IGST CGST SGST
Output Tax Liability 2,00,000 12,00,000 12,00,000
Less: IGST credit utilized (2,00,000) (2,00,000) (1,00,000)
Less: CGST credit utilized - (10,00,000) -
Less: SGST credit utilized -
 
- (11,00,000)
Liability to be paid in cash 0 0 0
ITC Carried Forward 0 0 0
 
If we compare the provisions, it is found that prior to introduction of Rule 88A, there was requirement to pay Rs. 1,00,000 in cash in SGST while the balance of CGST was unutilised to the extent of Rs. 1,00,000/-. However, as per the new Rule 88A, the assessee has the option to set off the credit in any manner but only after utilizing the balance first towards discharging IGST liability. So in the above example there is neither any balance in the tax ledgers nor there is requirement to pay tax in cash.
Now, the question arises here is whether Rule 88Acan prescribe additional mechanism for utilisation of credit when the section 49A which overrides section 49 does not provide for? However, in GST regime, the irony is that the software of GST portal is supreme and should be compatible with the mechanism provided by the GST Act and Rules as until the software doesn’t support the new mechanism, the introduction of new sections and rules for the benefit of the taxpayers would be of no use.   
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