FULL TEXT OF THE HIGH COURT JUDGMENT / ORDER IS AS FOLLOWS:
1. Mr. Vinay Shraff, learned counsel for the petitioner has invited the attention of the court to the impugned press release dated 18.10.2018 to point out that according to section 16(4) of the Central Goods and Services Tax Act, 2017, a registered person is not entitled to take input tax credit in respect of any invoice or debit note for supply of goods or services or both after the due date of furnishing of the return under section 39 for the month of September following the end of financial year to which such invoice or invoice relating to such debit note pertains or furnishing of the relevant annual return, whichever is earlier. It was pointed out that the relevant return under section 39 of the CGST Act is FORM GSTR-3 as provided under rule 61(1) of the Central Goods and Services Tax Rules. The attention of the court was invited to Notification No. 10/2017 – Central Tax dated 28th June, 2017 whereby the Central Goods and Services Tax (Second Amendment) Rules, 2017 came to be notified and more particularly, sub-rule (5) of rule 61 thereof, which provides thus:-
“(5) Where the time limit for furnishing of details in FORM GSTR-1 under section 37 and in FORM GSTR-2 under section 38 has been extended and the circumstances so warrant, return in FORM GSTR-3B, in lieu of FORM GSTR-3, may be furnished in such manner and subject to such conditions as may be notified by the Commissioner.”
2. It was pointed out that the Central Government realising its mistake thereafter, vide Notification No. 17/2017-Central Tax dated 27th July, 2017 notified the the Central Goods and Services Tax (Fourth Amendment) Rules, 2017 whereby sub-rule (5) of rule 61 came to be substituted as follows :-
“(5) Where the time limit for furnishing of details in FORM GSTR-1 under section 37 and in FORM GSTR-2 under section 38 has been extended and the circumstances so warrant, the Commissioner may, by notification, specify that return shall be furnished in FORM GSTR-3B electronically through the common portal, either directly or through a Facilitation Centre notified by the Commissioner.”
3. It was submitted that, therefore, FORM GSTR-3B is not in lieu of FORM GSTR-3 and is applicable only in the circumstances stipulated under sub-rule (5) of rule 61 of the rules.
4. Referring to the impugned press release, it was submitted that the same provides that with tax payers self-assessing and availing ITC through return in FORM GSTR-3B, the last date for availing ITC in relation to the said invoices issued by the corresponding suppliers during the period from July, 2017 to March, 2018 is the last date for the filing of such return for the month of September, 2018 i.e. 20th October, It was submitted that sub-section (4) of section 16 of the Act contemplates furnishing of return under section 39 thereof which is in FORM GSTR-3 whereas FORM GSTR-3B is to be furnished in the circumstances, as contemplated under sub-rule (5) of rule 61 of the rules. It was submitted that, therefore, the impugned press release is contrary to the provisions of the Act and the rules.
5. Having regard to the submissions advanced by the learned counsel for the petitioner, Issue Notice returnable on 9thJanuary, 2019.
The lapsed ITC can still be claimed till 31.03.2019, Gujarat High Court has accepted petition challaning provision of GST law which restrict ITC claimed upto Sept 2018 GSTR 3B.::
Present position on last date for taking INPUT TAX CREDIT of GST of FY 2017-18 The GST authority had issued a press release dt.18.10.2018 to point out that according to Sec.16(4) CGST Act.,2017, a registered person is not entitled to take input credit in respect of any invoice or debit note for supply of goods or services or both after the due date of furnishing of the return under sec 39 for the month of Sept. following the end of the financial year to which such invoice or debit note pertains or furnishing of the relevant annual return, whichever is earlier. There was apprehensions on the above press release and a writ petition was filed in the Gujarat High court contesting the validity and legality of press release. The court passed order , stating that the above press release is contrary to provisions of the Acts and rules of GST. The court accordingly directed a returnable notice to Central Govt. We have also reviewed the relevant provisions of GST act and rules and made the following observations. 1. The pertinent sections for availing ITC is sec 16 of the CGST act. The conditions on the basis of ITC can be claimed are a) Possession of Tax Invoice b) Receipt of Goods/ Service c) Payment of Tax d) Furnishing of Return specified under sec 39 of CGST act. Sec 39 specifies furnishing of monthly return by 20 the month succeeding such calendar month and showing details of i) inward and outward supplies of goods and services or both ii) input tax credit availed iii) tax payable iv) tax paid v) such other particulars as prescribed under GST rules Rule 61(1) prescribes the format and manner of submission of monthly return. The prescribed Form is GSTR-3 Rule 61(5) states that where the time limit for furnishing of Form GSTR-1 (return of outward supplies, sec-37 of CGST) and Form GSTR-2 ( return of inward supplies, sec-38 of CGST) has been extended the return may shall be furnished in Form GSTR-3B
Thus on the basis of above provisions it can be interpreted that Form GSTR-3B is summarized and adhoc arrangement of GSTR-1 & GSTR-2. GSTR-3B is not a substitute of monthly return, GSTR-3 as specified as under sec 39 and rule 61(5). Where monthly return , GSTR-3 has been deferred, the last date take input credit in respect of any invoice or debit note for supply of goods or services or both of the last financial year to which such invoice or debit note can be only on the basis of last date of furnishing of annual return, GSTR-9 i.e. 31.03.2019 The order passed by Gujarat High Court is most likely to pass order on next hearing on 09.01.2019, striking down the notifications and press release instructions on last date to avail the ITC of last financial year.
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