In the Finance Act (2), 2024 a major relief has been provided to the Taxpayers for the cases where ITC has been availed by the Taxpayers for the Financial Years 2017-18 to 2020-21 up to 30 November, 2021 which was other wise not available as was time-barred in terms of Section-16(4).
In this regard, notification has also been issued to notify the process of regularization of such cases (N.No. 22-2024 CT) . Further, a Circular No. 237/31/2024 dated 15th October, 2024 has also been issued in the matter.
In this article, we will discuss the issue at length incorporating the provisions of Amendment, Notification & Circular and try to cover the issue comprehensively using illustrations.
Topics Covered in the Article
Provisions of Section 16(6) along with illustration (Related to Cancellation & Revocation of Registration)
Procedure for regularization for Each Stage of the Proceedings
Process in case Benefit under Section 128A is availed (waiver of Interest & Penalty)
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Provisions of Section 16(4)
In terms of Section 16(4), Registered Persons can avail ITC pertaining to an Invoice or Debit Note up to 30th November (till 30th September, 2022 it was due date of the GSTR-3B for the September month) of the following Financial Year to which such Invoice or Debit Note Pertains or date of filing of annual return which ever is earlier.
For instance, for the invoice pertaining to 2018-19, ITC can be availed up to Due Date of GSTR-3B of September-2019 or date of filing Annual Return of 2018-19 whichever is earlier.
and for Invoice pertaining to 2023-24, ITC can be availed till 30th November of 2024 or date of filing Annual Return of 2023-24 whichever is earlier.
Provisions related to Debit Notes
Further, in respect of Debit Note, position of law up to 31.12.2020 was that for calculation of relevant financial year, date of original invoice was important. However, after 01.01.2021, date of original invoice is not relevant but date of Debit Note is relevant.
For instance, original Invoice is of 2018-19 and Debit Note is issued in 2019-20, ITC against this Debit Note can be availed up to Due Date for GSTR-3B of September-2019. (following the Financial Year of Invoice Date) or date of filing Annual Return of 2018-19 whichever is earlier.
However with effect from 01.01.2021, Debit Notes are de-linked from Original Invoices. Accordingly, for the Debit Notes issued after 01.01.2021, original invoice date is irrelevant. For instance, Original Invoice is of 2021-22 and Debit Note issued in 2022-23, ITC can be availed up to 30th November of 2023 or date of filing Annual Return of 2022-23 whichever is earlier. (In this regard, Circular 160/16/2021 may also be referred).
Special Provision related to FY 2017-18 (July 2017-March-18)
For FY 2017-18, Proviso was incorporated in Section 16(4) which states that in respect of FY 2017-19, ITC can be availed up to due date of GSTR-3B of March-2019 provided that Supplier has mentioned those invoices in GSTR-1 till due date of GSTR-1 of March-2019.
Provisions of Section 16(5)
During initial period, due to many reasons including on account of technology, ignorance etc. many of the Taxpayers have availed ITC beyond the period prescribed under Section-16(4) which was not actually permissible.
Therefore, as a good gesture and to promote ease of doing business & reduce litigation, Government in Finance Act (2), 2024 has incorporated Section-16(5) to regularize such ITC for the period 2017-18 to 2020-21 in case ITC has been availed in GSTR-3B filed up to 30th November, 2021.
For instance, in case ITC pertaining to 2018-19 has been availed in GSTR-3B of September-2021 filed on 20 October, 2021, it is allowed as per Section-16(5).
Accordingly, where SCN is yet to be issued by the Department on this issue, it will not be issued after coming in to picture of Section-16(5). The same has been made operational vide N.No. 17/2014 w.e.f. 27th September, 2024.
In cases where SCN has already been issued on the matter, special procedure for regularization has been prescribed which will be discussed in Next Section.
Provisions of Section 16(6) along with illustration
As we all know once Registration is cancelled by the department, Tax payer is no longer eligible for filing return. Accordingly, Taxpayer will not be able to avail ITC once Registration is cancelled.
It was also felt especially in the cases where later on cancellation of Registration has been revoked either by the Department or on the order of court that Taxpayer could not avail ITC due to time limit prescribed in Section 16(4).
Accordingly, new Section 16(6) has been inserted to provide relief to such taxpayers.
Salient Provisions of Section 16(6): In cases, where cancellation of Registration is revoked, now he can avail ITC up to:
a) As per normal provisions i.e. 30th November of the following year or date of filing Annual Return whichever is earlier
b) For the Period between date of cancellation/effective date of cancellation, with in 30 days of date of revocation of registration, which ever is later.
Condition for Availing benefit under Section 16(6): He must be eligible for ITC as per Section 16(4) on the date of cancellation.
Illustration
Case-1
Registration of a Taxpayer is being cancelled on 28th February, 2024 and revocation happened on 31st July, 2024.
In this case, he can avail ITC
For Invoices up to 31.03.2023: Not Allowed as he was not eligible for ITC under Section 16(4) as on 28th February, 2024.
for the invoices issued from 01.04.2023 to 31st March, 2024 up to 30th November 2024 or date of filing of Annual Return whichever is earlier.
For Invoices up from 1st April 2024 to 31st July, 2024 till 30 November, 2025 or date of filing of Annual Return whichever is earlier.
Case-2
In above case, Revocation happened on lets say on 31st December, 2024.
In this case, He can avail ITC
For Invoices up to 31.03.2023: Not Allowed as he was not eligible for ITC under Section 16(4) as on 28th February, 2024.
For the invoices issued from 01.04.2023 to 31st March, 2024 up to 30th January, 2025 (Taxpayer needs to file GSTR-3B with in 30 days from date of revocation of Registration)
For Invoices up from 1st April 2024 to 31st December, 2024 till 30 November, 2025 or date of filing of Annual Return whichever is earlier.
Procedure for regularization for Each Stage of the Proceedings
For regularization of past cases, a Circular No. 237/31/2024 & a Notification (N.No. 22-2024 CT) has been issued . Summary of the same is as follows:
Type-1 (Where SCN is yet to be issued by the Department on Section 16(4) contravention)
In this case, SCN will not be issued by the Department even if DRC-01A has been issued.
Type-2 (Where SCN has been issued but the Adjudication is still pending)
In this case, Proper Officer will drops the Proceedings of Section 16(4) during Adjudication if benefit under Section 16(5) & 16(6) is available.
Type-3 (Where Adjudication order has been issued & Appeal is pending)
In this case, In this case, Appellate Authority will drops the Proceedings of Section 16(4) during Appeal if benefit under Section 16(5) & 16(6) is available.
Type-4 (Where Revisionary Proceedings under Section 108 initiated but order is yet to be issued )
In this case, In this case, Revisionary Authority will drops the Proceedings of Section 16(4) during revision if benefit under Section 16(5) & 16(6) is available.
Type-5: This covers two circumstances:
a) Where Adjudication order has been issued but No Appeal has been filed
b) Where Appellate Authority or Revisionary Authority has issued order but No Appeal has been filed
In this case, the concerned taxpayer may apply for rectification of such order under the special procedure under section 148 of the CGST Act notified vide (N.No. 22-2024 CT) dated 08.10.2024, within a period of six months from the date of issuance of the said notification.
Special Note (Under Section-150)
Section-150 provides that:
Refund of any ITC that has already been reversed or paid on account of contravention of provisions of sub-section (4) of section 16 of the CGST Act would not be available even if such ITC is now available as per the provisions of sub-section (5) or sub-section (6) of section 16 of the CGST Act.
In this regard it is not be noted that Refund of any pre-deposit or deposit under protest for contravention of Section-16(4) would be available.
Process in case Benefit under Section 128A is availed (waiver of Interest & Penalty)
In the Circular- 238/32/2024-GST, it has been clarified that Proper officer while processing the request of the Taxpayer filed under Section-128A (related to waiver of interest & Penalty for SCN issued under Section-73 for period up to 2019-20), would take care of Section-16(5) & 16(6) also. In those cases, Taxpayer is not required to file separate Rectification Request specified under (N.No. 22-2024 CT).
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Legal Text of Section 16 (5) & 16(6)
(5) Notwithstanding anything contained in sub-section (4), in respect of an invoice or debit note for supply of goods or services or both pertaining to the Financial Years 2017-18, 2018-19, 2019-20 and 2020-21, the registered person shall be entitled to take input tax credit in any return under section 39 which is filed up to the thirtieth day of November, 2021.
(6) Where registration of a registered person is cancelled under section 29 and subsequently the cancellation of registration is revoked by any order, either under section 30 or pursuant to any order made by the Appellate Authority or the Appellate Tribunal or court and where availment of input tax credit in respect of an invoice or debit note was not restricted under sub-section (4) on the date of order of cancellation of registration, the said person shall be entitled to take the input tax credit in respect of such invoice or debit note for supply of goods or services or both, in a return under section 39,––
(i) filed up to thirtieth day of November following the financial year to which such invoice or debit note pertains or furnishing of the relevant annual return, whichever is earlier; or
(ii) for the period from the date of cancellation of registration or the effective date of cancellation of registration, as the case may be, till the date of order of revocation of cancellation of registration, where such return is filed within thirty days from the date of order of revocation of cancellation of registration,
whichever is later.”.
Disclaimer: We have taken due care to the best of our knowledge while explaining the provisions surrounding the issue purely for informational/academic purpose. It should not be considered as professional advice or consultancy to be relied upon. While due care has been taken by Fab Gyan in preparing this article, certain mistakes and omissions may creep in. The Fab Gyan or its Author does not accept any liability for any loss or damage of any kind arising out of any inaccurate or incomplete information in this document nor for any actions taken in reliance thereon.
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