As per Section 16 ibid, a registered person (viz., the recipient) could claim Input Tax Credit (ITC), for the relevant period, till 25-Oct-2018 – considering the extension of due date for filing GSTR-3B of September 2018 as well as the non-availability of annual return for filing. However, here too, there were repeat requests from several quarters to extend the timeline since assessees missed to claim the ITC.

Hence, the Government recently extended the last date for claiming ITC for the relevant period to 20-Apr-2019 (viz., the due date for filing GSTR-3B of March 2019). This was done by amending Section 16 ibid vide the aforesaid Order. That is, the following conditions should be satisfied for the recipient to claim ITC:

• The invoice(s) should pertain to the relevant period, viz., 01-Jul-2017 to 31-Mar-2018;
• The supplier should “upload” the details of such invoice(s) in GSTR-1 on or before the due date for the “month of March 2019”;
• The recipient should claim ITC in GSTR-3B on or before the due date for the month of March 2019 (i.e., by 20-Apr-2019).

Is it necessary that the supplier should have filed GSTR-1 and GSTR-3B (or) is it sufficient if the supplier had only uploaded the details of such invoices in GSTR-1?

In the context of ITC, the word “upload” has been used only in the amendment to Section 16 ibid and nowhere else either in the CGST Act or in the Rules thereunder. Hence, an aggressive assessee may adopt a disputable stand that it is sufficient if the supplier has only uploaded the invoices in GSTR-1 but has not paid the tax to the Government through GSTR-3B.

At this juncture, attention is drawn to Section 16(2)(c) ibid which clearly stipulates actual payment of tax charged to the Government as one of the key conditions to avail ITC. This means the liability should have been “set-off” by the supplier (i.e., entries should have been posted to the electronic cash / credit and payment ledgers) while filing GSTR-3B. Once such entries are posted to the ledgers, filing GSTR-3B thereafter becomes a formality. However, without such set-off, the claim of ITC is merely provisional.

Attention is also invited to the following extract in paragraph 4 of the press release dated 18-Oct-2018 issued by the Ministry of Finance (emphasis supplied): "... The apprehension that ITC can be availed only on the basis of reconciliation between FORM GSTR-2A and FORM GSTR-3B conducted before the due date for filing of return in FORM GSTR-3B for the month of September, 2018 is unfounded as the same exercise can be done thereafter also." While several taxpayers rejoiced on reading the first part of the above extract, the highlighted portion of the aforesaid extract indicates that the requirement to reconcile the ITC as per GSTR-2A with that in GSTR-3B cannot be completely ruled out.

There are two due dates for filing GSTR-1 for two categories of assessees. Which due date is relevant in the context of amendment to Section 16 ibid, i.e., for claiming ITC?

For registered persons having aggregate turnover of more than Rs.1.5 crore in the preceding / current financial year, it is well known that the due date for filing GSTR-1 for the month of March 2019 is 11-Apr-2019. However, for registered persons having aggregate turnover up to Rs.1.5 crore in the preceding / current financial year, the due date for filing GSTR-1 for the quarter January to March 2019 is 30-Apr-2019.

From a practical perspective / example, let us consider a supplier with aggregate turnover up to Rs.1.5 crore. On the due date of 30-Apr-2019, the supplier uploads invoice details of the relevant period in GSTR-1 of the quarter January to March 2019, which is in line with the amendment to Section 37 ibid as aforementioned. Yet, the recipient will not be able to claim ITC since the last date for making such claim is 20-Apr-2019.

Hence, the amendment to Section 16 ibid plausibly refers only to the monthly due date of GSTR-1 as follows (emphasis supplied): “… the details of which have been uploaded by the supplier under sub-section (1) of section 37 till the due date for furnishing the details under sub-section (1) of said section for the month of March, 2019.”.

Can ITC be claimed if the supplier uploads invoice details of the relevant period, in GSTR-1 of March 2019, beyond the due date of 11-Apr-2019?

From the amendment to Section 16 ibid, as detailed above, ITC cannot be claimed in respect of such invoices uploaded beyond the due date for filing GSTR-1 of March 2019.

Can ITC be claimed if the supplier uploads invoice details of the relevant period, in GSTR-1 of February 2019, by 11-Apr-2019?

Even if such invoices are uploaded in GSTR-1 of February 2019 belatedly, it falls within the timeline of 11-Apr-2019 as stipulated in the amendment to Section 16 ibid. Hence, ITC can be claimed by 20-Apr-2019.

Can ITC be claimed by the recipient, in respect of invoices for the relevant period, by filing GSTR-3B of March 2019 beyond 20-Apr-2019?

The amendment to Section 16 ibid clearly specifies that ITC can be claimed only till the due date of filing GSTR-3B of March 2019 (i.e., by 20-Apr-2019 assuming the law as on date). Hence, such ITC cannot be claimed.

Can ITC be claimed by the recipient, in respect of invoices for the relevant period, by filing GSTR-3B of February 2019 by 20-Apr-2019?

Even if GSTR-3B of February 2019 is filed belatedly, it falls within the timeline of 20-Apr-2019 as stipulated in the amendment to Section 16 ibid. Hence, ITC can be claimed in this case.