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Reversal
of ITC─Late filing of Return─Applicability of section 16(4) CGST Act, 2017
Section
16(2)(d) , CGST Act,
2017 starts with notwithstanding clause and stipulates
“furnishing of return u/s 39 for
entitlement of ITC”. This clause nowhere mentions “timely submission of returns
and/or debarring rectification of any return belatedly, for being entitled to
avail ITC. The “notwithstanding clause”, in the section 16(2) means
that it supersedes[1] all the sub-sections of section 16.
As
such, in our view, if a registered person has furnished returns &/or
rectified any return belatedly, he is entitled to ITC irrespective of section
16(4) CGST Act, 2017 and his vested right[2] can not be withdrawn in the
absence of a clear legal prohibition, by framing rules.
Rules
are procedural in nature and can not be construed as a mandatory provisions[3]. The Govt. has no legal authority to
retain the amount of credit to which the respondent in the present case is
entitled to and retention of it by the Govt., cannot be sustained, being
violative of Article 265 of
the Constitution
of India[4].
In
view of the above, in our view, ITC is not required to be reversed.
CA
Om Prakash Jain
Jaipur
9414300730
[1]. (1989) 74 STC 260 A.C.T.O.
v. Laxmi Misthan Bhandar (Raj
[2]. (1999) 106 ELT 3 Eicher Motors Ltd. v. Union of India
[3]. (2019) 32 J.K.Jain’s GST & VR 485 Adfert Technologies Pvt. Ltd. v.
Union of India (P&H)
(2020)
33 J.K.Jain’s GST & VR 147 Union of India & Ors. v. Adfert Technologies
Pvt. Ltd.(SC)
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