Gujarat HC Holds Partly Illegal Centre’s: Clarifying last date for availing ITC

Expressly stating that return in Form GSTR-3B is only a stop-gap arrangement and not a return in lieu of Form GSTR-3, the Gujarat High Court today held as illegal Centre’s Press Release dated October 18, 2018 to the extent that it clarified 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

A bench of Justice J B Pardiwala and Justice A C Rao held, “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.

“The said clarification could be said to be contrary to Section 16(4) of the CGST Act/GGST Act read with Section 39(1) of the CGST Act/GGST Act read with Rule 61 of the CGST Rules/GGST Rules”.

Section 16(4) of the CGST Act/GGST Act provides that the last date for taking the input tax credit in respect of any invoice or debit note pertaining to a financial year is the due date of furnishing of the return under Section 39 for the month of September following the end of the financial year or furnishing of the relevant annual return, whichever is earlier.

The bench said so while disposing of a petition moved by Chartered Accountant firm AAP & Co through advocates Nipun Singhvi and Vishal J Dave challenging the impugned press release on the ground that bare perusal of Rule 61 of the CGST/GGST Rules would indicate that the return prescribed in terms of Section 39 is a return required to be furnished in Form GSTR-3 and not GSTR-3B.

The applicant had sought quashing of the said part of the press release while submitting that as per the clarification made vide the press release, 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. I