Chartered Accountant
Bookmark and Share
click here to subscribe our newsletter
 
 
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.  

Comments

Print   |    |  Comment

GST UPDATE ON RULE 37A OF CGST RULES, 2017

GST UPDATE ON RULE 37A OF CGST RULES, 2017

Section 16(2)(c) of CGST Act, 2017 states that the Input tax credit shall be allowed to the recipient only if the tax charged in respect of such supply has been actually paid to the Government exchequer. Now, in the 48th GST Council meeting, it was recommended to insert Rule 37A in CGST Rules, 2017 to prescribe the mechanism for reversal of input tax credit by a registered person in the event of non-payment of tax by the supplier. This proposal has been implemented vide Notification no. 26/2022 –Central Tax dated 26th December, 2022. This notification notifies the Central Goods and Services Tax (Fifth Amendment) Rules, 2022 through which rule 37A has been inserted in the rules. This rule is the subject matter of today’s GST update.

To start with, let us check the bare language of this rule: -

“37A. Reversal of input tax credit in the case of non-payment of tax by the supplier and re-availment thereof-

 

Where  input  tax  credit  has  been  availed  by  a  registered  person  in  the  return  in FORM GSTR-3B for a tax period in respect of such invoice or debit note, the details of which have been  furnished  by  the  supplier  in  the  statement  of  outward  supplies  in FORM GSTR-1 or  using  the invoice furnishing facility, but the return in FORM GSTR-3B for the tax period corresponding to the said  statement  of  outward  supplies  has  not  been  furnished  by  such  supplier  till  the  30th day  of September following the end of financial year in which the input tax credit in respect of such invoice or debit note has been availed, the said amount of input tax credit shall be reversed by the said registered person, while furnishing  a return in FORM GSTR-3B on or before the 30th day of November following the end of such financial year:

 

Provided that where the said amount of input tax credit is not reversed by the registered person in a return in FORM GSTR-3Bon or before the 30thday of November following the end of such financial year during which such input tax credit has been availed, such amount shall be payable by the said person along with interest thereon under section 50.

 

Provided further that where the said supplier subsequently furnishes the return in FORM GSTR-3B for the said tax period, the said registered person may re-avail the amount of such credit in the return in FORM GSTR-3B for a tax period thereafter.”.

The analysis of this rule makes it clear that: -

•          It covers those invoices or debit note which were duly furnished in GSTR-1 or using Invoice furnishing facility but have not been included in GSTR-3B.

•          This rule will apply if the supplier does not include the same in GSTR-3B of that particular tax period or subsequent tax period upto the 30th day of September following the end of financial year.

•          In this case, the ITC so availed by the recipient shall be reversed while furnishing return in form GSTR-3B on or before the 30th day of November following the end of such financial year.

•          If the said registered recipient does not reverse the said amount by due date; interest shall be payable under section 50.

•          If the supplier subsequently furnishes GSTR-3B, the said recipient may re-avail the amount of ITC so reversed.

On analysis of this rule, it is ample clear that while framing this provision, the law makers have followed the easiest route rather than the right one. In the cases where the recipient has complied with all the conditions of availment of ITC as prescribed under section 16 of CGST Act, 2017; however, the supplier has defaulted in payment of tax; is it justified to ask the recipient to pay back the credit? The right way to deal with such situations is to get hold of the defaulting suppliers and follow the procedure already prescribed in chapter XV of CGST Act, 2017. When GST law prescribes the procedure how recovery will be made in cases where the supplier defaults; is it justified to ignore the same and prescribe a provision to hit the soft target – the innocent recipients who have complied with all the conditions for availment of ITC that are in their control. Can they be held guilty for the situations which are not in their control at all. Even if the law makers intend to secure the interest of Revenue, the right way would have been to prove the default or presence of guilty mind on part of recipients first, rather than asking for the reversal at the first place.

This rule 37A also create ambiguity in certain cases. Let us take an example. Suppose a supplier shows invoices of ? 50 lakhs in GSTR-1 filed by him. But he pays tax only on invoices of ? 28 lakhs. The differential amount being ? 22 lakhs is defaulted amount against which recovery can be made under newly inserted rule 37A. But while framing this rule, perhaps the law makers thought department has some sort of super power with the help of which it can ascertain on which invoices tax have not been paid in GSTR-3B. Now, if the supplier pays tax on some of these invoices subsequently. How will the department ascertain tax on which invoices remains unpaid and action should be taken against which recipients.

Further, the rule says if supplier defaults, the recipient must pay interest on the same; without any fault at his side. Interestingly, when subsequently the supplier pays tax, he may re-avail the ITC so reversed but what about the interest? Interest is always a loss, whether you pay it for your fault or for fault of others, right?

Let us hope the Government amends the relevant provisions to increase the strictness against the actual defaulters and stop punishing the innocent recipients without proving their fault.

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

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