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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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INCREASING COMPLEXITIES IN ITC RECONCILIATION FOR TAXPAYERS

INCREASING COMPLEXITIES IN ITC RECONCILIATION FOR TAXPAYERS
INCREASING COMPLEXITIES IN ITC RECONCILIATION FOR TAXPAYERS
Yesterday notification no. 49/2019-Central Tax dated 09.10.2019 has been issued which created havoc in the minds of taxpayers registered in GST. Notification No. 49/2019 - Central Tax issued has made some important changes by making amendments in CGST Rules, thereby inserting rule 36(3) in CGST Rules ,2017 which states that-
 
ITC in respect of invoices or debit notes, the details of which have not been uploaded by the suppliers in GSTR-1, shall not exceed 20% of the eligible credit available in respect of invoices or debit notes the details of which have been uploaded by the suppliers in GSTR-1.
 
Although everyone is discussing its legal and ethical issues arising out of this amendment but this amendment also has innumerable practical difficulties attached with itself for the assessees as well as departmental officers. This update has been prepared to analyze the complications of this amendment in accounting and compliance procedural aspects.
 
Let us understand this with the help of an example. Suppose Mr. A registered person has ITC of Rs. 1, 00,000 duly reflected in GSTR 2A in the month of October 2019 and the amount of total credit availability as per invoices available with him is Rs. 1, 50,000. Now as per the inserted rule, A is eligible to take credit amounting to Rs. 1 lacs plus 20% of 1, 00,000 (Eligible credit) i.e. =Rs. 1, 20,000. This shows that out of Rs. 50,000 which are not auto populated in GSTR 2A of October 2019 month, Mr. A can avail credit up to Rs. 20,000. The balance amount of Rs. 30,000 is ineligible for availment for the particular month in 3B return.
 
The plain reading of the amendment does not indicate the complexities attached which will affect the business of assessees in many ways. We are briefly discussing all the relevant issues below-
 
  • Meaning of the termEligible Credit-The inserted rule does not elaborate the term eligible credit. However, depth analysis of the term depicts that eligible credit is the total credit reflected in the GSTR 2A for a particular period or month. However, this credit excludes ineligible credit as per Section 17(5), credit pertaining to exempt supplies, reverse charge supplies reflecting in 2A return etc.
Let us analyze this term while correlating with the above mentioned example.
Now, suppose the amount of credit reflected in GSTR 2A of November 2019 month is Rs. 2, 00,000. However, A can take credit for Rs. 3, 00,000 as per the invoices available with him. The issue under consideration is basically with the calculation of eligible credit for each period and maintenance of accounts.
The major questions arises are-
  1. While matching GSTR 2A of the next month, if the invoices pertaining to Rs. 30,000 of the previous month are uploaded by the supplier; then what amount should be considered for calculating 20% of the eligible credit? Whether this should include Rs. 30,000 of the previous month or the amount reflecting in that particular month should be taken into consideration?
  2. If accumulated credit is taken for calculating eligible credits, then assessee needs to match GSTR 2A of all the previous months which is a very tedious task and never ending exercise. Because GSTR2A is updated on real time basis and many assessees file their GSTR 1 on quarterly basis. The credit relating to quarterly return filers is reflected in the last month of a particular quarter.
  3.  In addition to this, how the assessee will do accounting entries relating to input tax credit which are ineligible due to 20% limit but eligible as per GST law that too month wise in their books of accounts. Maintenance of accounts as per this rule will be an impossible task for the accountants.
 
  • Applicability of Proviso to Section 16(2) of CGST Act, 2017-   Third proviso to Sec. 16(2) of the CGST Act, 2017 provides for reversal of ITC on account of non-payment. Same is reproduced below for ready reference:
“Provided further that where a recipient fails to pay to the supplier of goods or services or both, other than the supplies on which tax is payable on reverse charge basis, the amount towards the value of supply along with tax payable thereon within a period of one hundred and eighty days from the date of issue of invoice by the supplier, an amount equal to the input tax credit availed by the recipient shall be added to his output tax liability, along with interest thereon, in such manner as may be prescribed :
Further Rule 37 prescribes the mechanism for implementing the above referred provisions.
Now, we will further discuss the how the above proviso will increase the complexities when combined with new inserted rule.
Suppose Mr. A has made a purchase of Rs. 10,000(credit involved Rs. 1000) from Mr. B. A has availed the said credit in the month of October 2019 and the same is reflecting in GSTR 2A also. But after the elapse of 180 days, A fails to make payment to B. This calls for reversal of credit as per proviso to Section 16(2) and accordingly A reverses this credit in the return for the relevant month.
As and when A will make the payment to B, he is eligible to reclaim the said credit. The difficulty faced by A in this matter that whether the reclaimed credit should again be considered by him for the calculation of eligible credit in the month of reavailment. Though this loophole would be beneficial for assessee but department will point out issues during reconciliation checks.
 
  • Problems while filing refund application- There will be numerous problems attached to it that will be faced by exporters. They normally pay tax from ITC taken by them in accounts. But now there will be restriction on availment of credit. Hence, they will be forced to claim the refund in next month after credit is available to him or they might have to pay the tax in cash. The first option will delay the refund by one month and no exporter will intend to go for second option.
Likewise, the refund claim arising out of inverted duty structure will also be delayed. Similarly, the circular of CBIC which asks the exporters to show the invoices if not reflected in GSTR-2A will be redundant.
 
  • Worries of Small Taxpayers-Moreover, the recipient will stop purchasing from small suppliers who pay the GST on quarterly basis as the credit will be delayed in such cases.
 
The author of this update has seen that there is great problem while preparing reconciliation of invoices with GSTR-2A. Assessees are finding it difficult to do it on annual basis. But doing it on monthly basis will be impossible task. The supplier will upload its invoices on 11th and it should be reconciled between 12 to 19th as GSTR-3B is to be filed on 20th. Hence, it is to be done in time bound manner. Is it will be possible with the present portal? Every rational person does have doubts. 
 
In the nutshell we can say that as a result of this amendment, regular matching of ITC with the details available in GSTR-2A will become necessary. But there will be problems with department also to implement the same. GSTR-2A is dynamic and keep on changing on real time basis. It does not allow to download GSTR-2A on a particular date. Suppose, an assessee ignores the same then the department officer doing audit after 2 years cannot know the invoices uploaded on a particular date.
 
It seems that this amendment cannot be implemented in present form. It is suggested that the portal should allow to download the invoices on a particular date and also give a facility to show new invoices separately which have come on portal after the last downloaded  GSTR-2A.
 
We hope that the GST council soon provides us more clarification on this amended rule. A clear picture and simplified version of the rule is the only thing assessee can expect from the government.
The content of this GST update is for educational purpose only and not intended for solicitation.
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