Availment & Entitlement of GST ITC – Condition of appearing invoices in GSTR 2A/2B

Dinesh M Tambde – [2022] 139 taxmann.com 419 (Article)

Solution or action is being sought by the taxable persons under GST for claiming ITC when an invoice does not appear in GSTR2B and the conditions mentioned below are satisfied: –

1. Having a valid Tax Invoice.
2. ITC is claimed in books of account based on the invoice in hand.
3. Goods or Services are received before claiming ITC in books.

Suggestions are being asked as to when and how to claim GST ITC in GSTR3B in following scenarios: –

1. Vendor has filed his GSTR1 in time but not uploaded the concerned Invoice in his GSTR1, hence it is not appearing in GSTR2B.
2. Vendor has not filed his GSTR1 for the period, but ITC is claimed in the month based on his Tax Invoice.
3. Vendor has uploaded his GSTR1 after the due date (hence invoice is not appearing in GSTR2B), whereas ITC is claimed in GSTR3B in the same month on the basis of the Tax Invoice.
4. Vendor had amended invoices on GST Portal for GSTIN change after a long period but before stipulated period for making amendment.

All the above queries are with respect to the confusion that all the taxable persons are facing while claiming ITC in their returns. Therefore, one has to understand the relevant legal provisions for taking an appropriate stand. The source of claiming ITC on the basis of GSTR-2B is in Section 16(2) of the CGST Act and hence, the relevant provisions with respect to conditions for claiming of ITC under Section 16(2) of the CSGT Act as amended by Finance Act, 2022 is reproduced hereunder:

“(2) Notwithstanding anything contained in this section, no registered person shall be entitled to the credit of any input tax in respect of any supply of goods or services or both to him unless, —

(a) he is in possession of a tax invoice or debit note issued by a supplier registered under this Act, or such other tax paying documents as may be prescribed;

(aa) the details of the 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 note in the manner specified under section 37; (This is newly inserted clause by Finance Act, 2022, but same has not yet come into force)

(b) he has received the goods or services or both.
Explanation. —For the purposes of this clause, it shall be deemed that the registered person has received the goods or, as the case may be, services—

(i) where the goods are delivered by the supplier to a recipient or any other person on the direction of such registered person, whether acting as an agent or otherwise, before or during movement of goods, either by way of transfer of documents of title to goods or otherwise;
(ii) where the services are provided by the supplier to any person on the direction of and on account of such registered person.]

(ba) the details of input tax credit in respect of the said supply communicated to such registered person under section 38 has not been restricted. (This is newly inserted clause by Finance Act, 2022, but same has not yet come into force)

(c) subject to the provisions of section 41, the tax charged in respect of such supply has been actually paid to the Government, either in cash or through utilisation of input tax credit admissible in respect of the said supply; and

(d) he has furnished the return under section 39:
Provided that where the goods against an invoice are received in lots or instalments, the registered person shall be entitled to take credit upon receipt of the last lot or instalment:

Provided further that where a recipient fails to pay to the supplier of goods or services or both, other than the supplies on which tax is payable on reverse charge basis, the amount towards the value of supply along with tax payable thereon within a period of one hundred and eighty days from the date of issue of invoice by the supplier, an amount equal to the input tax credit availed by the recipient shall be added to his output tax liability, along with interest thereon, in such manner as may be prescribed:
Provided also that the recipient shall be entitled to avail of the credit of input tax on payment made by him of the amount towards the value of supply of goods or services or both along with tax payable thereon.”

In the above provisions of Section 16(2) of CGST Act the most relevant clauses are clause (aa), clause (ba), clause (c) and clause (d).

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