Booking of ITC, blocking of ITC, Refund of ITC to exporters and other unutilized ITC

ELIGIBILITY TO CLAIM INPUT TAX CREDIT

Section 16(1) of the CGST Act provides that: Every registered person is entitled to take credit of input tax charged on any supply of goods or services or both to him which are used or intended to be used in the course or furtherance of his business.

Thus, to claim Input Tax Credit (ITC) it is necessary that the claimant is a ‘registered person’. All such persons who are registered under the Act are eligible to claim ITC in respect of taxes paid on all inward supplies of goods and services received, which are used or intended to be used in the course of his business or for furtherance of business.

Such inward supplies may be of inputs, input services or capital goods. All such supplies are eligible for claim of ITC. Thus, whether it is raw material, packing material, trading goods, consumables, or items of expenditure (debited to Profit & Loss a/c under admin and other expenses) all such items as well as capital goods are eligible provided the same are used or intended to be used in the course or furtherance of business (subject to such conditions and restrictions as may be prescribed).

CONDITIONS & RESTRICTIONS

Apart from the basic condition i.e., used or intended to be used in the course or furtherance of business, section 16(2) provides for certain conditions, which may be summarised as follows:

  1. Goods and/or services (as the case may be) must have been received.
  2. The recipient must be in the possession of a tax invoice (issued by the supplier) in respect of such supply
  3. Tax charged on such inward supply must have been paid to the Government (whether in cash or by way of utilisation of ITC)
  4. A return (in accordance with section 39) has been furnished
  5. In respect of capital goods, if the registered person has claimed depreciation (under the Income-tax Act) on tax component of such assets (capital goods), ITC shall not be admissible. That would mean that if tax component has been added to the cost of such capital goods, ITC to that extent is not eligible.

It has further been provided that if the recipient fails to make payment to the supplier in respect of supplies so received (on which ITC has been claimed) within a period of 180 days from the date of issuance of Tax Invoice, the ITC so claimed has to be reversed along with interest. And such amount can be reclaimed on making payment to the supplier.

REDUCTION IN ITC

Section 17 provides for certain conditions in which the claim of ITC may get reduced to certain extent or proportionate reduction may have to be worked out in following circumstances:—

  1. If the taxable supplies received are used partly for the purposes of business and partly for any other purposes (may be for personal use). ITC will be admissible to the extent of business uses only. If the exact amount is not ascertainable then proportionate reduction method will be applicable.
  2. If the taxable supplies received are used partly for the purposes of outward supply of taxable goods and/or services (including zero rated supplies) and partly for exempt supplies, ITC will be admissible to the extent of use in taxable supplies including zero rated supplies). If the exact amount is not ascertainable then proportionate reduction method will be applicable.
    Note: ‘Zero Rated supplies’ are defined u/s. 16 of IGST Act as follows:—
    “16. (1) “zero rated supply” means any of the following supplies of goods or services or both, namely:–
    1. export of goods or services or both; or
    2. supply of goods or services or both to a Special Economic Zone developer or a Special Economic Zone unit.”

    Thus, although there is no tax payable on outward supplies, which are zero rated, input tax credit is available in full (without any reduction).

  3. A banking company or a financial institution including a non-banking financial company, engaged in supplying services by way of accepting deposits, extending loans or advances shall have the option to either comply with the provisions of section 17(2) (i.e. bifurcation of taxable and exempt supplies), or avail of, every month, an amount equal to fifty per cent of the eligible input tax credit on inputs, capital goods and input services in that month and the rest shall lapse.

NO ITC

Section 17(5) of the CGST Act provides that; Notwithstanding anything contained in sub-section (1) of section 16 and sub-section (1) of section 18, input tax credit shall not be available in respect of the following, namely:—

  1. motor vehicles and other conveyances except when they are used––
    1. for making the following taxable supplies, namely:—
      1. further supply of such vehicles or conveyances; or
      2. transportation of passengers; or
      3. imparting training on driving, flying, navigating such vehicles or conveyances;
    2. for transportation of goods;
  2. The following supply of goods or services or both—
    1. Food and beverages, outdoor catering, beauty treatment, health services, cosmetic and plastic surgery except where an inward supply of goods or services or both of a particular category is used by a registered person for making an outward taxable supply of the category of goods or services or both or as an element of a taxable composite or mixed supply;
    2. Membership of a club, health and fitness centre;
    3. Rent-a-cab, life insurance and health insurance except where––
      1. the Government notifies the services which are obligatory for an employer to provide to its employees under any law for the time being in force; or
      2. such inward supply of goods or services or both of a particular category is used by a registered person for making an outward taxable supply of the same category of goods or services or both or as part of a taxable composite or mixed supply; and
    4. Travel benefits extended to employees on vacation such as leave or home travel concession;
  3. Works contract services when supplied for construction of an immovable property (other than plant and machinery) except where it is an input service for further supply of works contract service;
  4. Goods or services or both received by a taxable person for construction of an immovable property (other than plant or machinery) on his own account including when such goods or services or both are used in the course or furtherance of business.
    Explanation.—For the purposes of clauses (c) and (d), the expression “construction” includes re-construction, renovation, additions or alterations or repairs, to the extent of capitalisation, to the said immovable property;
  5. Goods or services or both on which tax has been paid u/s. 10 (composition schemes);
  6. Goods or services or both received by a non-resident taxable person except on goods imported by him;
  7. Goods or services or both used for personal consumption;
  8. Goods lost, stolen, destroyed, written off or disposed of by way of gift or free samples; and
  9. Any tax paid in accordance with the provisions of sections 74, 129 and 130 (specific cases).
    Explanation.– For the purposes of Chapter V (Input Tax credit) and Chapter VI (registration), the expression “plant and machinery” means apparatus, equipment, and machinery fixed to earth by foundation or structural support that are used for making outward supply of goods or services or both and includes such foundation and structural supports but excludes—
    1. Land, building or any other civil structures;
    2. Tele-communication towers; and
    3. Pipelines laid outside the factory premises.

It may further be noted that following persons are not entitled to claim input tax credit in respect of any of the items of inward supply of goods or services:

  1. An unregistered person
  2. Registered persons who have opted for Composition 
    Scheme
  3. Persons holding Unique Identification Number (UIN)
  4. A registered person whose registration is cancelled (in respect of inward supplies on or after the date of cancellation).

DOCUMENTATION REQUIREMENTS AND CONDITIONS FOR CLAIMING ITC

The input tax credit shall be availed by a registered person, including the Input Service Distributor, on the basis of any of the following documents, namely:—

  1. Tax invoice issued by the supplier of goods or services or both in accordance with the provisions of section 31;
  2. An invoice issued in accordance with the provisions of clause (f) of sub-section (3) of section 31, subject to payment of tax (i.e., in respect of purchases from unregistered dealers, where tax is payable under reverse charge scheme);
  3. A debit note issued by a supplier in accordance with the provisions of section 34 (in respect of goods return, rate difference, etc.);
  4. A bill of entry or any similar document prescribed under the Customs Act, 1962 or rules made thereunder for assessment of integrated tax on imports;
  5. An ISD invoice or ISD credit note or any document issued by an Input Service Distributor in accordance with the provisions of sub-rule (1) of rule invoice 7.

TIME LIMIT FOR CLAIM OF ITC

The procedure to claim ITC by a registered person is that the same can be claimed immediately in respective month (Tax Period) to which the tax invoice relates (subject to actual receipt of such goods/services). Each such claim of ITC is credited to the Electronic Credit Register of such registered person. He may utilise the credit as and when he would like to adjust the same against his output tax liability.

However, if a person has not claimed ITC in the respective month, for any reason, he may claim the same any time (i.e., in any tax period) up to the due date of filing the return for the month of September following the end of financial year to which the invoice pertains or furnishing of the relevant Annual Return for the said financial year, whichever is earlier.

It may be noted that credit of CGST, SGST or UTGST and IGST has to be maintained separately and the same can be utilsed in a prescribed manner only. The credit of CGST can be utilised for discharge of output tax liability of CGST and if balance remains it can be utilised for IGST also. But credit of CGST cannot be utilsed for payment (discharge of output tax liability) of SGST. Similarly credit of SGST cannot be utilsed for output tax liability of CGST. In short, cross utilisation of CGST and SGST is not permitted. However, the credit of IGST can be utilised first for discharge of output tax liability of IGST, then against CGST, and if still balance remains, against SGST.

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CBIC asks GST officers to block ITC on basis of 'material evidence', not suspicion

The Central Board of Indirect Taxes and Customs (CBIC) said the commissioner or an officer authorised by him must form an opinion for blocking of input tax credit only after "proper application of mind" considering all the facts of the case

The CBIC has come out with guidelines on blocking of tax credit by GST field officers, saying that such blocking should be on the basis of 'material evidence' and not just out of 'suspicion'.

The guidelines laid down five specific circumstances in which such credit could be blocked by a senior tax officer. These include availment of credit without any invoice or any valid document, or availing of credit by purchasers on invoices on which GST has not been paid by sellers.

The Central Board of Indirect Taxes and Customs (CBIC) said the commissioner, or an officer authorised by him, not below the rank of assistant commissioner, must form an opinion for blocking of input tax credit (ITC) only after "proper application of mind" considering all the facts of the case.

"It is reiterated that the power of disallowing debit of amount from electronic credit ledger must not be exercised in a mechanical manner and careful examination of all the facts of the case is important to determine cases(s) fit for exercising power under rules 86A," it said.

The government had introduced Rule 86A in GST rules in December 2019 giving powers to taxmen to block the ITC available in the electronic credit ledger of a taxpayer if the officer has "reasons to believe" that the ITC was availed fraudulently.

Till early last month, taxmen had blocked Rs 14,000 crore worth of input tax credit (ITC) of 66,000 businesses under this rule.

The CBIC in its guidelines dates November 2 said the remedy of disallowing debit of amount from electronic credit ledger being, by its nature, extraordinary, has to be resorted to with utmost circumspection and with maximum care and caution.

It contemplates an objective determination based on intelligent care and evaluation as distinguished from a purely subjective consideration of suspicion.

The reasons are to be on the basis of material evidence available or gathered in relation to fraudulent availment of input tax credit or ineligible input tax credit availed as per the conditions/grounds under sub-rule (1) of Rule 86A.

These guidelines have recommended monetary limits for the division of powers between commissions, joint commissioners, and assistant commissioners on blocking of the tax credit.

For blocking of ITC above Rs 5 crore, principal commissioner/ commissioner will take a decision. Where the monetary amount is in the range of Rs 1-5 crore, additional commissioner or joint commissioner will take a decision, while for those less than Rs 1 crore deputy commissioner/ assistant commissioner rank officer will take decision on ITC blocking.