Input Tax Credit — In the instant case, writ petition has been filed seeking quashing and setting aside of the press release dated 18th October 2018 to the extent that its para 3 purports to clarify that the last date for availing the input tax credit relating to the invoices issued during the period from July 2017 to March 2018 is the last date for the filing of the return in Form GSTR-3B for the month of September 2018.
As per the above clarification, a taxpayer will not be able to claim the input tax credit for the period from July 2017 to March 2018 after filing of the return in Form GSTR-3B for the month of September 2018.
It disentitles a taxpayer to claim the input tax credit for the aforesaid period which could not be taken on account of any error or omission.
It is submitted that the aforesaid clarification is not in consonance with Section 16(4) of the CGST Act/GGST Act which provides for the last date for taking the input tax credit. It is submitted that the last date of taking the input tax credit should be due date of filing of return in Form GSTR-3 or annual return whichever is earlier.
The moot question is that Whether the return in Form GSTR-3B is a return required to be filed under Section 39 of the CGST Act/GGST Act; whether the aforesaid press release is valid and in consonance with Section 16(4) of the CGST Act/GGST Act only if Form GSTR-3B is a return required to be filed under Section 39 of the CGST Act.
Held that— Section 39(1) of the CGST/GGST Act provides that every taxpayer, except a few special categories of persons, shall furnish a monthly return in such form and manner as may be prescribed.
Rule 61 of the CGST Rules prescribes the form and manner of submission of monthly return. Rule 61(1) of the CGST Rules provides that the return required to be filed in terms of Section 39(1) of the CGST Act is to be furnished in Form GSTR-3.
It would be apposite to state that initially it was decided to have three returns in a month, i.e. return for outward supplies i.e. GSTR-1 in terms of Section 37, return for inward supplies in terms of Section 38, i.e. GSTR-2 and a combined return in Form GSTR-3.
However, considering technical glitches in the GSTN portal as well as difficulty faced by the tax payers it was decided to keep filing of GSTR-2 and GSTR-3 in abeyance. Therefore, in order to ease the burden of the taxpayer for some time, it was decided in the 18th GST Council meeting to allow filing of a shorter return in Form GSTR-3B for initial period.
It was not introduced as a return in lieu of return required to be filed in Form GSTR-3. The return in Form GSTR-3B is only a temporary stop-gap arrangement till due date of filing the return in Form GSTR-3 is notified.
Notifications are being issued from time to time extending the due date of filing of the return in Form GST-3, i.e. return required to be filed under Section 39 of the CGST Act.
It was notified vide Notification No. 44/2018-Central Tax dated 10th September 2018 that the due date of filing the return under Section 39 of the Act, for the months of July 2017 to March 2018 shall be subsequently notified in the Official Gazette.
It would also be apposite to point out that the Notification No. 10/2017-Central Tax dated 28th June 2017 which introduced mandatory filing of the return in Form GSTR-3B stated that it is a return in lieu of Form GSTR-3.
However, the Government, on realizing its mistake that the return in Form GSTR-3B is not intended to be in lieu of Form GSTR-3, rectified its mistake retrospectively vide Notification No. 17/2017- Central Tax dated 27th July 2017 and omitted the reference to return in Form GSTR-3B being return in lieu of Form GSTR-3.
In view of the above, the impugned press release dated 18th October 2018 could be said to be illegal to the extent that its para-3 purports to clarify that the last date for availing input tax credit relating to the invoices issued during the period from July 2017 to March 2018 is the last date for the filing of return in Form GSTR-3B (for the month of September 2018).
The said clarification could be said to be contrary to Section 16(4) of the CGST Act read with Section 39(1) of the CGST Act read with Rule 61 of the CGST Rules. — AAP And Co., Chartered Accounts Throu Authorised Partner Vs. Union of India & 3 Other (S) [2019] 13 TAXLOK.COM 061 (Gujarat)