In a major relief to the Bharat Aluminium Company Ltd. (BALCO), the Chhattisgarh High Court stayed order denying Input Tax Credit (ITC) due to mis-match in Form GSTR-3B with details in Form GSTR-2A.
The assessee, BALCO was denied ITC on the basis of matching of Input tax credit availed in Form GSTR-3B with the details furnished by suppliers in Form GSTR-2A for the period 2018-19.
Mr. Gopal Mundra, counsel for the petitioner contended that section 42 of the CGST Act read with Rule 69 of the CGST Rules envisage the provision for matching of ITC. As per the said provisions, matching of Input tax credit can be done only once the return in Form GSTR-3 and Form GSTR-2 is filed by the registered person. However, the provision of filing of Form GSTR-2 and GSTR-3 has been suspended since the inception of GST.
Mr. Mundra further urged tha in case the seller has not paid the tax, a recovery has to be made from the seller and here in this case, the petitioner has come out with the purchases made, but it did not tally/match with 2A ITC shown by the seller meaning thereby the seller may not have filed return to remove the same. When the physical verification was offered to be made by the petitioner it was not accepted. It is stated that for the recovery of nature from the buyer, the action can only be available in exceptional circumstances.
Mr. Mundra relied on the decision of Madras High Court in M/s. D.Y. Beathel Enterprises Vs. State Tax Officer wherein it was held that if the default is made by non-payment of tax by the seller, the recovery shall be made from the seller and only in exceptional circumstances, it can be from the recipient, therefore, the Input Tax Credit which was claimed by the petitioner cannot be denied for the reason that the seller has not uploaded their invoices on time.
The single judge bench of Justice Gautam Bhaduri while listing the matter in the week commencing August 02, 2021, granted stay on recovery and restrains Revenue to take coercive steps on assessee depositing 5% of demand within 15 days
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