Question And Answer
Subject: GST ITC
Answered by:
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Date: June 21, 2023
Query asked by P YADAGIRI


in our case supplier is not filed by GSTR-1 in time for the financial year  2020-21 but buyer clime the GST ITC based on tax invoice,   the same point is raised  department issued a  notice required a clarification of  excess  declared  GST ITC between the GSTR-3B  vs GSTR-2B  . The above difference GST ITC  is payable  complosory  ?

if any judgement declared by courts please forward  judgement

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Answer given by

Till today no direct judgment. The department is relying on section 16(4) which reads as under:
“16. Eligibility and conditions for taking input tax credit.—
(4) A registered person shall not be 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 [******]41 debit note pertains or furnishing of the relevant annual return, whichever is earlier…….”
In my opinion the said section cannot apply in a situation when the supplier files his return late. The recipient has no control over the supplier. Therefore, said condition of filing return in time by supplier cannot be applied for grant of ITC to recipient. It will be illogical. The said condition is also for inclusion in ITC in return upto 30th September (Now 30th November). There is no condition that such return should be filed within time. In other words, If the ITC is included in return upto 30thSeptember then though such return is filed belatedly still ITC should remain available.
Otherwise also, since the tax is received by department, in a fair manner ITCF is required to be given to recipient and cannot be denied on technicalities. The case may be represented accordingly and may be taken further in appeal, if required.

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