Chartered Accountant
Bookmark and Share
click here to subscribe our newsletter
 
 
Corporate News *   CBIC issues draft rules for Customs valuation *  Top Headlines: Threshold for Benami deals, green bond investors, and more *  Govt aims 1-hour clearance for goods at all ports *  Exporters Allowed To Use RoDTEP, RoSCTL Scrips To Pay Customs Duty, Transfer Them; Rules Amended *  Millions of labourers to be affected by brick producers’ strike over hike in GST, coal rates *  Inauguration of ‘kendriya GST parisar’ *  Transporter can seek Release of Conveyance alone, not Goods under GST Act: Madras HC *  GST: Quoting of DIN Mandatory for Responding to Notice, Govt Modifies Portal *  Firms can soon file claims for GST credits of ?400 cr *  CBIC issues modalities for filing transitional credit under GST. *  Mumbai: Man creates 36 fake GST firms, arrested for input tax credit fraud of Rs 23 cr *  Report to restructure Commerce Ministry under study; idea is to set up trade promotion body: Goyal *  Firms can soon file claims for GST credits of ?400 cr *  Gambling Alert! Govt May Levy Up To 28% GST; UP, Bengal Back Move *  EPFO backs raising retirement age to ease pressure on pension funds *  India Moving Up Power Scale, Set to Become Third Largest Economy By 2030 *  Airfares Get Expensive: What Changes for Flyers From Today? *  IRCTC Latest News: Passengers to Pay More For Cancelling Confirmed Rail Tickets Soon. *  IBC prevails over Customs Act, says Supreme Court. *  As GST enters sixth year, a time for evaluation and reassessment *  There’s GST on daily essentials as Centre needs money to buy MLAs: Arvind Kejriwal *  Now, GST on cancellation of confirmed train tickets, hotel bookings *  GST kitty for top States could rise 20% in FY23, says Crisil *  French customs officials seize another cargo vessel over Russia sanctions *  TradeLens builds on Asia momentum with Pakistan Customs deal *  Hike tax on tobacco, reduce affordability & increase revenue: Civil society organizations to GST council *  Bihar: ?10 crore tax evasion on tobacco products detected in raids *  Centre failed on GST, COVID; would it be anti-national? Rajan on Infosys row *  Service Tax not Chargeable on Income Tax TDS portion paid by recipient: CESTAT grants relief to TVS *  Foreign portfolio investors make net investment of Rs 7575cr in Sep so far
Subject News *  Run-up to Budget: Monetary threshold for GST offences may rise to Rs 25 cr *   GST (Tax) E-invoice Must For Businesses With Over Rs 5 Crore Annual Turnover *   Both Central GST and excise duty can be imposed on tobacco, rules Karnataka high court *   CBIC Issues Clarification On Extended Timelines For GST Compliance *   CBIC Issues Clarification On Extended Timelines For GST Compliance *  Budget 2023- 9.6 crore gas connections *  GST: Tamil Nadu Issues Instructions for Assessment and Adjudication Proceedings *  GST: CBIC Extends Last Date for filing of ITC *  GST collection in September surpasses Rs 1.4 lakh crore for straight seventh time *  Dollar smuggling case: Customs chargesheet names M Sivasankar as key conspirator. *  Hike in GST rates fuels inflation *  Assam: CBI arrests GST commissioner in Guwahati *  GST fraud worth ?824cr by 15 insurance Cos detected *  India proposes 15% customs duties on 22 items imported from UK *  Decriminalising certain offences under GST on cards *  Surge in GST collections more due to higher inflation: India Ratings *  MNRE Notifies BCD and Hike in GST Rates as ‘Change in Law’ Events But With a Condition | Mercom India *   Solar projects awarded before customs duty change allowed cost pass-through *  Rajasthan High Court Dismisses Writ Petitions Challenging Levy Of GST On Royalty *   GST revenue in September likely at Rs 1.45 lakh crore *  Govt working on decriminalising certain offences under GST, lower compounding charge *  Building an institution like GST Council takes time, trashing is easy: Sitharaman *  GST collections in Sept may touch ?1.5 lakh crore *  KTR asks Centre to withdraw GST on handlooms *  After Gameskraft, More Online Gaming Startups To Receive GST Tax Claims *  Madras HC: AAR Application Filed Under VAT Does Not Survive After GST Enactment *  Threshold for criminal offences under GST law may be raised *  Bengaluru: Gaming company faces biggest GST notice of Rs 21,000 crore *  CBIC clarifies Classification of Cranes for GST, Customs Duty *  Customs seize gold hidden in bicycle in Kerala airport  

Comments

Print   |    |  Comment

GST UPDATE ON RETROSPECTIVE AMENDMENT IN SECTION 50

GST UPDATE ON RETROSPECTIVE AMENDMENT IN SECTION 50
The budget 2022 has made considerable changes in the CGST Act, 2017 and has tried to remove anomalies prevalent in the various sections of the CGST Act, 2017. The matching concept could not be operationalised since the inception of GST and it was perceived as far possibility to develop sufficient infrastructure for the same. Consequently, the provisions related to matching concept being section 42, 43 and 43A of the CGST Act, 2017 have been deleted. Similarly, section 50(3) of the CGST Act, 2017 has been amended retrospectively w.e.f. 01.07.2017 to rectify the drafting error in the said section. The analysis of the retrospective amendment made in section 50(3) of the CGST Act, 2017 is the subject matter of discussion of our present update. The provision of section 50(3) of the CGST Act, 2017 prevalent as of now, reads as follows:- (3) A taxable person who makes an undue or excess claim of input tax credit under sub-section (10) of section 42 or undue or excess reduction in output tax liability under sub-section (10) of section 43, shall pay interest on such undue or excess claim or on such undue or excess reduction, as the case may be, at such rate not exceeding twenty-four per cent., as may be notified by the Government on the recommendations of the Council. Moreover, the notification no. 13/2017-Central Tax dated 28.06.2017, prescribing interest rate has reference of section 50(1) specifying interest rate as 18% and states interest rate of 24% for section 50(3). Now, the question arises is the applicable interest rate for wrongful availment and utilisation of input tax credit for reason other than matching concept which is not made operational till date. There is no specific provision in section 50 of the CGST Act, 2017 covering situations wherein the interest is leviable for wrongful availment and utilisation of input tax credit for various other reasons such as ineligible credit under section 17(5) availed by the assessee or inadvertently credit taken twice by the assessee. In such cases, there was confusion as regards the applicability of interest rate as 18% or 24% or 0% as there is no specific provision for the same. It is worth mentioning that this lacunae in the provision of section 50 was pointed by us in our earlier GST update titled- MADARS HC DECISION ON LEVY OF INTEREST ON WRONG AVAILMENT OF ITC. It is submitted that the hon’ble Madras High Court in the case of M/S F1 AUTO COMPONENTS PVT. LTD. [W.P. NO. 6631 OF 2021] had concluded that since the provisions of section 42 were not invoked in the case of petitioner, they were not required to pay interest rate of 24% but were required to pay interest of 18% for the wrongful availment and utilisation of input tax credit. While analysing the reasoning adopted by the Hon’ble High Court, we had pointed that as per the provisions contained in section 50 of the CGST Act, 2017, section 50(3) only covers the situation of wrongful availment and utilisation of input tax credit under section 42/43 of CGST Act. Consequently, once it is held that provisions of section 42/43 are not applicable, interest should not be leviable for wrongful availment and utilisation of credit. It appears that the government has realised the drafting lacunae and has resorted to rectification of the said provision. The retrospective amendment as proposed in the Finance Bill, 2022 reads as follows:- “(3) Where the input tax credit has been wrongly availed and utilised, the registered person shall pay interest on such input tax credit wrongly availed and utilised, at such rate not exceeding twenty-four per cent. as may be notified by the Government, on the recommendations of the Council, and the interest shall be calculated, in such manner as may be prescribed.” It is worth noting that simultaneously retrospective amendment has been made in the notification no. 13/2017-Central Tax dated 28.06.2017 prescribing 18% for section 50(3). On harmonious construction of the above amendments, after enactment of the Finance Act, 2022, the wrongful availment and utilisation of input tax credit will be liable to interest at the rate of 18%. It is submitted that the above amendment on the one hand confirms the levy of interest on wrongful availment and utilisation of credit by removing the drafting error in section 50 while on the other hand provides benefit to the assessee that interest is not payable on mere wrongful availment of input tax credit. The issue regarding levy of interest on mere wrongful availment of interest is decided in favour of the assessees. Reference may be made to the decision given by the Hon’ble Patna High Court in the case of M/S COMMERCIAL STEEL ENGINEERING VS STATE OF BIHAR [W.P. NO. 2125 OF 2019] wherein it was concluded that interest is to be charged only if the wrongful availment of input tax credit has resulted in short payment of tax by the assessee. Therefore, the amendment seeks to reduce the possibility of litigation as regards interest liability on wrong availment and utilisation of input tax credit in future
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