ALL GUJARAT FEDERATION OF TAX CONSULTANTS

Room No.303/B-wing, Pratyaksha Kar Bhavan, Nr. Panjrapole, Ambawadi, Ahmedabad-380 015, Gujarat, India. Email: sec.agftc@gmail.com

President
Adv. Hiren R. Vakil
203,2nd Floor, Aditya Building, Opp. Sardar Patel Sewa Samaj Hall,
Nr. Mithakhali Six Roads, Mithakhali, Ahmedabad – 380006
(M) +91 99783 90284 (0) +91 79 26447950
(e) hrvakil@gmail.com

Hon. Secretary
Balmukund N. Shah
B-102, Premium House, Nr. Gandhigram Railway Station,
Navrangpura, Ahmedabad – 380009
(M) +91 97129 85824 (0) +91 79 2657 4781 / +91 79 6661 0385
(e) bnshah_123@yahoo.com

Dated-22nd January 2023

Ms. Nirmala Sitharamanji,
Chair Person,
Goods and Service Tax Council,
Office of the Goods & Services Tax Council,
Tower-ii, 5th Floor, Jeevan Bharti Building,
New Delhi-110001
E-mail: gstc.secretariat@gov.in

Sub: Representation to regarding restriction for claiming ITC  Respected Madam,

1. About Federation:

The All Gujarat Federation of tax Consultants (AGFTC) founded in 1992 is the first and only Apex Regional Body of Advocates, Chartered Accountants and Tax Practitioners (Tax Professionals) of Gujarat, having membership strength of 1500 professional and institutional membership of 37 local bar associations from all the District of Gujarat.

The prime object of the federations is not only to work for the cause of the professionals but also educate the public at large and to act as a Catalyst between citizen and Government authorities. The AGFTC regularly organize Seminars, Webinars, Tax Conclave and Lecture on legal awareness in mofussil areas across the Gujarat.

2. Request to remove some restrictions for claiming ITC

The recent amendment brought to section 16(2) by way of inserting clause (aa) which is made effective from 01-01-2022 vide Notification No. 39/2021-CT dated 21-12-2021, this sub section says "the details of invoice or debit note referred to in clause (a) has been furnished by the supplier in the statement of outward supplies and such details have been communicated to the recipient of such invoice or debit in the manner specified under section 37".

Sub section (2) Clause (a) says "the buying dealer or the person who is claiming the input tax credit shall be in possession of a tax invoice or a debit note issued by a supplier registered under this Act or such other taxpaying documents as may be prescribed

Sub section (2) Clause (b) says "he has received the goods or services or both" followed by an explanation. If these two conditions are satisfied, then the buying dealer would be eligible for input tax credit.

The insertion of clause (c) and (d) in Sub section (2) are unwarranted as the purchasing dealer has to see that the supplying dealer has paid the tax and files the returns and then the recipient dealer has to claim the input tax credit and when the filing date is same the purchasing dealer cannot make his vendor or seller to file a return and pay the tax.

If these five conditions are satisfied, then the buying dealer would be eligible for input tax credit.

3, Circular No. 183/15/2022-GST dated 27-12-2022

A clarification was issued by Circular No. 183/15/2022-GST dated 27-12-2022 in which it was clarified that since GSTR -2A could not be made available on the common portal of the tax payers in the initial stages of implementation of GST for the financial year 2017-18 and 2018-19, it is clarified that the proper officer shall ask the registered person to produce a certificate from the concerned supplier from his chartered accountant or the cost accountant certifying that supplies in respect of the said invoices of supplier have actually been made by the supplier to the said registered person and the tax on such supplies has been paid by the said supplier in his return in Form GSTR -3B.

The certificate of Chartered Accountant should contain UDIN and it can be verified from the ICAI website or should contain the cost accountant UDIN number and it can be verified from the website.

For amount less than Rs. 5.00 Lakhs, the proper officer can ask the claimant to produce the certificate of supplier which says that the supplies have been made to the claimant and the tax has been paid by him in his return in Form GSTR -3B.

Putting the responsibility on the shoulders of the buyers or the Chartered Accountant or Cost Accountant of the supplier is incorrect. The GST authorities are so unequipped that they can catch the persons who have not paid the taxes.

The whole grievance is about Clause (c) & (d) of sub section (2) where it is said that the selling dealer if has not paid tax and has not filed his returns, then the buying dealer would not be eligible for the input tax credit.

Hon'ble Supreme Court in the case of Arise India Ltd., Vs. Commissioner of Trade and Taxes had upheld the Delhi High Court's decision where section 9(2) was read down on the ground that if once the tax payer pays the tax to the seller then it is the duty of the Department to collect the tax from the seller.

We request your goodness to remove Clause (c) and (d) of sub­section (2) of the Section 16 of CGST Act, 2014

We sincerely hope that the Government under the dynamic leadership of Hon'ble PM Shri Narendra Modi and Hon'ble FM Smt. Nirmala Sitharaman would provide the requisite reliefs to the trade and industry.

Thanking you,

Yours sincerely,

Adv. Hiren R Vakil
(President)

Shri Balmukund Shah
(Hon. Secretary)

Adv. Dhiresh T Shah
(Chairman-Representation Committee)

Adv. Bharat L Sheth
(Chairman- Indirect Tax Committee)

C.C. To

1. Nirmala Sitharaman
Honourable Finance Minister
Ministry of Finance
134, North Block, Parliament Street,
New Delhi – 110001

2, Chairman,
The Central Board of Indirect taxes and custom,
New Delhi. 110001