MM TAX CLUB

CBIC vide Circular No. 193/05/2023-GST Dated the 17th July, 2023 issued Clarification to deal with difference in Input Tax Credit (ITC) availed in FORM GSTR-3B as compared to that detailed in FORM GSTR-2A for the period 01.04.2019 to 31.12.2021.

                Attention is invited to Circular No. 183/15/2022-GST dated 27th December, 2022, vide which clarification was issued for dealing with the difference in Input Tax Credit (ITC) availed in FORM GSTR-3B as compared to that detailed in FORM GSTR-2A for FY 2017-18 and 2018-19, subject to certain terms and conditions.

2.     Even though the availability of ITC  was subjected to  restrictions and  conditions specified  in  Section  16  of  Central Goods and Services Tax Act, 2017 (hereinafter referred to as “CGST Act”)  from  1st July,  2017  itself, restrictions regarding availment of ITC by the registered persons up to certain specified limit beyond the ITC available as per FORM GSTR-2A were provided under rule 36(4) of Central Goods and Services Tax Rules, 2017 (hereinafter referred to as “CGST Rules”) only with effect from 9th October 2019. W.e.f. 09.10.2019, the said rule allowed availment of Input tax credit by a registered person in respect of invoices or debit notes, the details of which have not been furnished by the suppliers under sub-section (1) of section 37, in FORM GSTR-1 or using the invoice furnishing facility (IFF), to the extent not exceeding 20 per cent. of the eligible credit available in respect of invoices or debit notes the details of which have been furnished by the suppliers under sub-section (1) of section 37 of CGST Act in FORM GSTR-1 or using the IFF. The said limit was brought down to 10% w.e.f. 01.01.2020 and further reduced to 5% w.e.f. 01.01.2021. The said rule was intended to allow availment of due credit in cases where the suppliers may have delayed in furnishing the details of outward supplies. Further, w.e.f. 01.01.2022, consequent to insertion of clause (aa) to sub-section (2) of section 16 of the CGST Act, ITC can be availed only up to the extent communicated in FORM GSTR-2B.

3.1    As discussed above, rule 36(4) of CGST Rules allowed additional credit to the tune of 20%, 10% and 5%, as the case may be, during the period from 09.10.2019 to 31.12.2019, Page 2 of 401.01.2020 to 31.12.2020 and 01.01.2021 to 31.12.2021 respectively, subject to certain terms and  conditions,  in  respect  of  invoices/supplies  that  were  not  reported  by  the  concerned suppliers in their FORM GSTR-1 or IFF, leading to discrepancies between the amount of ITC availed by the registered persons in their returns in FORM GSTR-3B and the amount as available in their FORM GSTR-2A. It may, however, be noted that such availment of input tax credit was subject to the provisions of clause (c) of sub-section (2) of section 16 of the CGST Act which provides that ITC cannot be availed unless tax on the said supply has been paid by the supplier. In this context, it is mentioned that rule 36(4) of CGST Rules was a facilitative  measure  and  availment  of  ITC  in  accordance  with  rule  36(4)  was  subject  to fulfilment of conditions of section 16 of CGST Act including those of clause (c) of sub-section (2) thereof regarding payment of tax by the supplier on the said supply.

3.2.   Though the matter of dealing with difference in Input Tax Credit (ITC) availed in FORM GSTR-3B as compared to that detailed in FORM GSTR-2A has been clarified for FY 2017-18 and 2018-19 vide Circular No. 183/15/2022-GST dated 27th December, 2022, various representations have been received seeking clarification regarding the manner of dealing with such  discrepancies  between  the  amount  of  ITC  availed  by  the  registered  persons  in  their FORM GSTR-3B and the amount as available in their FORM GSTR-2A during the period from 01.04.2019 to 31.12.2021.

4.     In order to ensure uniformity in the implementation of the provisions of the law across the field formations, the Board, in exercise of its powers conferred under section 168(1) of the CGST Act, hereby clarifies as follows: (i)    Since rule 36(4) came into effect from 09.10.2019 only, the guidelines provided by Circular No. 183/15/2022-GST dated 27th December, 2022 shall be applicable, in toto, for the period from 01.04.2019 to 08.10.2019.

(ii)    In  respect  of  period  from 09.10.2019  to  31.12.2019,  rule  36(4)  of  CGST  Rules permitted availment of Input tax credit by a registered person in respect of invoices or debit notes, the details of which have not been furnished by the suppliers under sub-section (1) of section 37, in FORM GSTR-1 or using IFF to the extent not exceeding 20 per cent. of the eligible credit available in respect of invoices or debit notes, the details of which have been furnished by the suppliers under sub-section (1) of section 37 in FORM GSTR-1 or using IFF. Accordingly, the guidelines provided by Circular No. 183/15/2022-GST dated 27th December, 2022 shall be applicable  for verification of the condition of clause (c) of sub-section (2) of Section 16 of CGST Act for the said period, subject to the condition that availment of Input tax credit by the registered person in respect of invoices or debit notes, the details of which have not been furnished by the suppliers under sub-section (1) of section 37, in FORM GSTR-1 or using IFF shall not exceed 20 per cent. of the eligible credit available in respect of invoices or debit notes the details of which have been furnished by the suppliers under sub-section (1) of section 37 in FORM GSTR-1 or using IFF. This is clarified through an illustration below:

Illustration:

Consider a case where the total amount of ITC available as per FORM GSTR-2A of the registered person was Rs. 3,00,000, whereas, the amount of ITC availed in FORM GSTR- 3B by  the  said  registered  person  during  the  corresponding  tax  period  was  Rs.  5,00,000. However, as per rule 36(4) of CGST Rules as  applicable during the said period, the said registered person was not allowed to avail ITC in excess of an amount of Rs 3,00,000*1.2 = Rs.3,60,000.

In the above case, the ITC of Rs 1,40,000 which has been availed in excess of Rs. 3,60,000 shall not be admissible as per rule 36(4) of CGST Rules as applicable during the said period even  if  the  requisite  certificate  as  prescribed  in  Circular  No.  183/15/2022-GST  dated 27.12.2022 is submitted by the registered person. Therefore, ITC availed in FORM GSTR-3Bin excess of that available in FORM GSTR-2A up to an amount of Rs 60,000 only (i.e. 3,60,000-3,00,000) can be allowed subject to production of the requisite certificates as per Circular No. 183/15/2022-GST dated 27.12.2022.

(iii)   Similarly, for the period from 01.01.2020 to 31.12.2020, when rule 36(4) of CGST Rules allowed additional credit to the tune of 10% in excess of the that reported by the suppliers in their FORM GSTR-1 or IFF, the guidelines provided by Circular No. 183/15/2022-GST dated 27th December, 2022 shall be applicable,  for verification of the condition of clause (c) of sub-section (2) of Section 16 of CGST Act for the said period, subject to the condition that availment of Input tax credit by the registered person in respect of invoices or debit notes, the details of which have not been furnished by the suppliers under sub-section (1) of section 37, in FORM GSTR-1 or using the IFF shall not exceed 10 per cent. of the eligible credit available in respect of invoices or debit notes the details of which have been furnished by the suppliers under sub-section (1) of section 37 in FORM GSTR-1 or using the IFF.

(iv)   Further, for the period from 01.01.2021 to 31.12.2021, when rule 36(4) of CGST Rules allowed additional credit to the tune of 5% in excess of that reported by the suppliers in their FORM GSTR-1 or IFF, the guidelines provided by Circular No. 183/15/2022-GST dated 27thDecember, 2022 shall be applicable,  for verification of the condition of clause (c) of sub-section  (2)  of  Section  16  of  CGST  Act  for  the  said  period,  subject  to  the  condition  that availment of Input tax credit by the registered person in respect of invoices or debit notes, the details of which have not been furnished by the suppliers under sub-section (1) of section 37, in FORM GSTR-1 or using the IFF shall not exceed 5 per cent. of the eligible credit available in respect of invoices or debit notes the details of which have been furnished by the suppliers under sub-section (1) of section 37 in FORM GSTR-1 or using the IFF.

5.     It is further clarified that consequent to insertion of clause (aa) to sub-section (2) of section 16 of the CGST Act and amendment of rule 36(4) of CGST Rules w.e.f. 01.01.2022, no ITC shall be allowed for the period 01.01.2022 onwards in respect of a supply unless the same is reported by his suppliers in their FORM GSTR-1 or using IFF and is communicated to the said registered person in FORM GSTR-2B. 

6.     Further, it may be noted that proviso to rule 36(4) of CGST Rules was inserted vide Notification No. 30/2020-CT dated 03.04.2020 to provide that the condition of rule 36(4) shall be applicable cumulatively for the period February to August, 2020 and ITC shall be adjusted on cumulative basis for the said months in the return for the tax period of September 2020. Similarly, second proviso to rule 36(4) of CGST Rules was substituted vide Notification No. 27/2021-CT dated 01.06.2021 to provide that the condition of rule 36(4) shall be applicable cumulatively for the period April to June, 2021 and ITC shall be adjusted on cumulative basis for the said months in the return for the tax period of June 2021. The same may be taken into consideration while determining the amount of ITC eligibility for the said tax periods.

7.     It may also be noted that these guidelines are clarificatory in nature and may be applied as per the actual facts and circumstances of each case and shall not be used in the interpretation of the provisions of law.  

8.     These  instructions  will  apply  only  to  the  ongoing  proceedings  in  scrutiny/  audit/ investigation,  etc.  for  the  period  01.04.2019  to  31.12.2021  and  not  to  the  completed proceedings.  However,  these  instructions  will  apply  in  those  cases  during  the  period 01.04.2019 to 31.12.2021 where any adjudication or appeal proceedings are still pending.  

9.     Difficulty, if any, in the implementation of the above instructions may please be brought to the notice of the Board

CBIC vide Circular No. 192/04/2023-GST dated 17th July, 2023 issued Clarification on charging of interest under section 50(3) of the CGST Act, 2017, in cases of wrong availment of IGST credit and reversal thereof.

                References have been received from trade requesting for clarification regarding charging of interest under sub-section (3) of section 50 of the Central Goods and Services Tax Act, 2017 (hereinafter referred to as the “CGST Act”) in the cases where IGST credit has been wrongly availed by a registered person. Clarification is being sought as to whether such wrongly availed IGST credit would be considered to have been utilized for the purpose of charging of interest under sub-section (3) of section 50 of CGST Act, read with rule 88B of Central Goods and Services Tax Rules, 2017 (hereinafter referred to as the “CGST Rules”), in cases where though the available balance of IGST credit in the electronic credit ledger of the said registered person falls below the amount of such wrongly availed IGST credit, the total balance of input tax credit in the electronic credit ledger of the registered person under the heads of IGST, CGST and SGST taken together remains more than such wrongly availed IGST credit, at all times, till the time of reversal of the said wrongly availed IGST credit.

2. Issue has been examined and to ensure uniformity in the implementation of the provisions of law across the field formations, the Board, in exercise of its powers conferred by section 168 (1) of the CGST Act, hereby clarifies the issues as under:

3. It is requested that suitable trade notices may be issued to publicize the contents of this Circular.

4. Difficulty, if any, in implementation of this Circular may please be brought to the notice of the Board.

Instruction No.113 Dated the 14th July, 2023

The Ministry directed to state that SOFTEX is the mechanism of RBI which ensures collection of data on exports for statistical and monitoring purpose. To this end, reference is drawn to RBI Guidelines (copy enclosed) on reporting on foreign exchange transactions through FETERS system by using specific purpose codes based on the nature of transactions.

2. In case of SEZ units, the SOFTEX Form is being submitted online through SEZ-Online portal by the services units and thereafter, based on the approval of the office of Development Commissioners (DC) further submitted to RBI

3. Instances have come to the notice that SEZ units are submitting the physical copies of invoices and in some cases, even physical copies of SOFTEX forms for verification to DC office despite the same is being filed online digitally. It is also noted that in case of units in STPI, the practice of submitting physical copies of SOFTEX and invoices has been dispensed away.

4. Accordingly, as a measure of enhancing ease of doing business, it has been decided to dispense with the practice of submitting physical copies of SOFTEX and invoices by SEZ units. Assuch, forthe purpose of verification, any document including relevant invoices may be obtained electronically from the units with the approval of DC. In exceptional cases, where there is a need for more detailed verification, DC may permit seeking sample copies of relevant invoices in physical mode, on a case-to-case basis.

Notification No. 49/2023 dated July 14, 2023

In exercise of the powers conferred by sub-section (1C) of section 139 of the Income-tax Act, 1961 (43 of 1961), the Central Government hereby makes the following amendment in the notification of the Government of India, Ministry of Finance, (Department of Revenue), Number 55/2019, dated the 26th July, 2019, published in the Gazette of India, Extraordinary, Part-II, Section 3, Sub-section (ii), vide number S.O. 2672(E), dated 26th July, 2019, namely:-

In the said notification, - Clause (a) of the Explanation to first para is substituted as under:

 “Explanation:- For the purposes of this paragraph,-

a. "investment fund" means any fund established or incorporated in India in the form of a trust or a company or a limited liability partnership or a body corporate which has been granted a certificate of registration as a Category I or a Category II Alternative Investment Fund and is regulated under the Securities and Exchange Board of India (Alternative Investment Funds) Regulations, 2012, made under the Securities and Exchange Board of India Act, 1992 (15 of 1992) or regulated under the International Financial Services Centres Authority (Fund Management) Regulations, 2022 made under the International Financial Services Centres Authority Act, 2019 (50 of 2019);”

2. This notification shall come into force with effect from the date of its publication in the Official Gazette.          

MCA approves withdrawal of another 7,338 prosecutions pending before various courts under Special Arrears Clearance Drive-II towards promoting Ease of Doing Business and decriminalisation of compoundable offences under Companies Act, 2013

Withdrawal will lead to 21.86% reduction in pending prosecutions being pursued by Central Government

Prosecutions related to serious non-compoundable offences such as cheating, fraud, acceptance of deposits, pending charges, etc. not considered for withdrawal

Earlier in 2017, Special Drive-I resulted in withdrawal of 14,247 prosecutions

In firm commitment towards its objective of promoting Ease of Doing Business and in furtherance of decriminalisation of compoundable offences under the Companies Act, 2013, the Central Government through the Ministry of Corporate Affairs (MCA) has taken a decision under its Special Arrears Clearance Drive-II to withdraw another 7,338 prosecutions, which have remained pending before various courts.

This would be a significant decrease of 21.86% in the pending prosecutions being pursued by the Central Government. The Government’s “Action Plan for Special Arrears Clearance Drives” for reducing the number of pending litigations had previously resulted in withdrawal of 14,247 prosecutions during the Special Drive-I in the year 2017.

The MCA had constituted a committee to undertake a thorough review of all the pending litigations. Long pending Prosecutions for compoundable offences have been identified for withdrawal. Prosecutions related to serious non-compoundable offences such as cheating, fraud, acceptance of deposits, pending charges, etc. have not been considered for withdrawal. This decisive step will also unclog the courts as well as foster the growth of corporate sector in India, while maintaining a healthy corporate governance framework.

The cases being withdrawn under the Special Drive-II are corollary to the amendment brought out by the Government vide the Companies (Amendment) Act, 2020 for decriminalisation of offences under the Companies Act, 2013 to facilitate the smooth functioning of businesses as well as minimise lengthy litigations before courts.

Besides, it is also part of the principle that the Central Government should not be a compulsive litigant, that these drives are being undertaken.