The Gauhati High Court has held that Assesee is entitled to take Input Tax Credit ( ITC ) in any return under section 39 of the Goods and Service Tax Act, 2017. As per section 16(5), in respect of an invoice or debit note for supply of goods or services or both pertaining to the Financial Years 2017-18, 2018-19, 2019-20 and 2020-21, the registered person shall be entitled to take input tax credit in any return under Section 39 which is filed upto the thirtieth day of November, 2021.
Jyotirmoyee Drugs And Anr., the petitioners are engaged in an execution of wholesale/distributor business of drugs. The petitioner no.2 carries on business in the name and style of “M/S Jyotirmoyee Drgus”. The petitioner is a registered assesee under the provisions of Central Goods and Services Tax Act, 2017/ Assam Goods & Services Tax Act, 2017 ( CGST/AGST Act, 2017).
Complete Draft Replies of GST ITC Related Notices, Click Here
Under Section 44 of the CGST/AGST Act, 2017, the assesees are required to file annual returns which may include self certified reconciliation statement reconciling the value of supplies declared in the returns filed for the financial year with the audited annual financial statement for every financial year electronically under the provisions of Rule 80 of the CGST Rules, 2017. Annual returns are to be furnished for every financial year as specified under Section 44 electronically in form GSTR-9 on or before 31st day of December following the end of such financial year through the common portal. For the financial year 2017-18 the due date for filing the annual return under the Rule 80 of the CGST Rules, 2017 was 31.12.2018.
By Order issued by the Ministry of Finance, Government of India, the due date of furnishing the annual return for financial year 2017-18 was extended upto 31.01.2020. This was further extended thereafter by notifications No.06/2020-Central Tax dated 03.02.2020 issued by the Government of India, Ministry of Finance the due date for filing annual return for the financial year 2017-18 was further extended.
Section 168A of the CGST Act, 2017 was brought into statute which permitted the Government to extend the time limits under special circumstances and it provides that notwithstanding anything contained in the CGST Act, 2017, the Government may on the recommendations of the GST Council by notification extend the time limit specified in or prescribed under the Act in respect of actions which cannot be completed due to “force majeure” conditions.
Complete Draft Replies of GST ITC Related Notices, Click Here
To initiate proceedings under Section 73 of the CGST/AGST Act, 2017 the appropriate authority is required to issue notice under sub-section 1 of Section 73 at least 3 (three) months prior to the time limits specified under sub Section 10 for issuance of Order. Under sub- section 10 of the Section 73 of the CGST/AGST Act, 2017, it is provided that the order required to be passed under Section 73 of the CGST/AGST Act, 2017 shall be within 3 (three) years from the due date of furnishing the annual return for the financial year to which tax not paid or short paid or input tax credit wrongly availed or utilized relates to or within 3 years from the date of its erroneous refund.
In view of the Covid-19 Pandemic situation, by notification issued by the Central Board of Indirect Taxes and Customs the time line prescribed was extended. The GST Council in its 47th meeting held on 28th & 29th June, 2022 also recommended for extension of limitation prescribed under Section 73 of the CGST Act, 2017 for the finical year 2017-18 on the ground of difficulties faced by the Centre as well as the State Government in completing scrutiny and issuing orders under Section 73 owing to Covid-19 Pandemic.
The petitioner is aggrieved that the time limit prescribed under Section 73 of the CGST/AGST Act, 2017 which enables the department to proceed under Section 73 of the CGST/AGST Act, 2017 is required to be issued within 3 years from the due date for furnishing annual returns for the financial year concerned.
Complete Draft Replies of GST ITC Related Notices, Click Here
Pursuant to the extension of the limitations, the petitioner was issued show-cause notice alleging inter alia that during the financial year 2018- 19, the petitioner had availed ITC to the tune of Rs.49,32,051.57 in violation of Section 16(4) of the CGST/AGST Act. However, without considering the reply of the petitioner, the respondent authorities by impugned order in Original No.31/GST/AC/SIL/2023-24 dated 28.03.2024 confirmed the demand of Rs.49,32,051.57. The petitioner is aggrieved by the impugned order dated 28.03.2024 as well as the show-cause and has therefore assailed the same.
The petitioner is aggrieved that the grounds for extension of the time period prescribed under Section 73 of the CGST/AGST Act, 2017 was issued by invoking Section 168A of the CGST Act, 2017 and on the ground that because of Covid-19 Pandemic situation necessary action to be taken on behalf of the Department could not be undertaken and therefore, the Covid-19 Pandemic being a factor beyond the control of the Department, it was treated to be a “force majeure” condition.
Section 16 of the CGST Act, 2017 provides for the eligibility and the conditions for taking input tax credit for the registered person. Section 16(4) of the CGST Act, 2017. It was observed that the challenge made in the writ petition before the Court is no longer required to be addressed in view of the amendments brought in by the Finance (No.2) Act, 2024. In view of the amendments brought in it is evident that the petitioner is entitled to avail the benefit of input tax credit for the relevant period.
A single bench of Justice Soumitra Saikia held that in view of the amendments brought in, the petitioner is entitled to get the claim of the input tax credit subject to the conditions prescribed in the newly inserted Section 16(5) and Section 16(6) of the CGST Act, 2017 [inserted by Finance (No.2) Act, 2024].
Complete Draft Replies of GST ITC Related Notices, Click Here
Further held that “ Since the decision has already been taken that the same notification is required to be issued by the State Government, taking such submissions into account, this Court deems it proper to close the instant writ petition by setting aside the impugned order in original No.31/GST/ AC/ SIL/ 2023-24 dated 28.03.2024 passed by the respondent no.4.”
The court remanded the matter back to the competent jurisdictional officer to pass appropriate order(s) if need be.
Subscribe Taxscan Premium to view the JudgmentSupport our journalism by subscribing to Taxscan premium. Follow us on Telegram for quick updates
