QUESTION

There is Intrastate Purchase invoice in which SGST/CGST is being charge but due to clerical error, the ITC as IGST in GSTR-3B in the F.Y. 2020-21 has been claimed. It is being identified in the month of November-21. How to deal in GSTR9 for the F.Y. 2020-21? Further can it be rectify in the month of November-21 with reversal of ITC IGST and claimed the same in SGST/CGST head, GSTR3B and declared in table 13 and 14 of Annual Return 20-21.

ANSWER

FACTS OF THE CASE: ITC on intrastate purchase has been claimed as IGST instead of CGST/SGST in FY 2020-21 and was identified in November 21.

LAW APPLICABLE: SECTION 16 OF CGST ACT

(4) A registered person shall not be entitled to take input tax credit in respect of any invoice or debit note for supply of goods or services or both after the due date of furnishing of the return under section 39 for the month of September following the end of financial year to which such invoice or debit note pertains or furnishing of the relevant annual return, whichever is earlier.

SECTION 39 OF CGST ACT

(9) Subject to the provisions of sections 37 and section 38, if any registered person after furnishing a return under sub-section (1) or sub-section (2) or sub-section (3) or sub-section (4) or sub-section (5) discovers any omission or incorrect particulars therein, other than as a result of scrutiny, audit, inspection or enforcement activity by the tax authorities, he shall rectify such omission or incorrect particulars in such form and manner as may be prescribed subject to payment of interest under this Act:

Provided that no such rectification of any omission or incorrect particulars shall be allowed after the due date for furnishing of return for the month of September or second quarter following the end of the financial year to which such details pertain, or the actual date of furnishing of relevant annual return, whichever is earlier.

INTERPRETATION: As per section 39 any error or omission in GSTR-3B shall not be allowed after the due date for furnishing of return for the month of September or second quarter following the end of the financial year, or the actual date of furnishing of relevant annual return, whichever is earlier.
   
Further as per section 16, registered person shall not be entitled to take input tax credit in respect of any invoice or debit note for supply of goods or services or both after the due date of furnishing of the return under section 39 for the month of September following the end of financial year to which such invoice or debit note pertains or furnishing of the relevant annual return, whichever is earlier.

Since the time period for rectification of error/ommission related to FY 2020-21 in GSTR-3B has already elapsed, further no ITC can be claimed through GSTR-9, therefore ITC claimed under wrong head is required to be reversed through DRC-03, however no ITC can be claimed under correct head due to specified time limit.

CONCLUSION: ITC claimed under wrong head is required to be reversed through DRC-03 but no ITC can be claimed as time period has already elapsed.

In GSTR-9, In Table 6 IGST wrongly excess claimed is to be shown in 6M and not to be shown under 6B.

Table 13 and 14 of GSTR-9 are related to transactions for the financial year declared in returns of the next financial year till the specified period. In the given case ITC was already claimed in relevant FY but under wrong head and no rectification was done till the specified time, so it cannot be declared under Table 13 and 14.

SUGGESTION: If the amount is huge, then we may suggest you to take credit of it, as there may be possibility that it will be allowed in litigation.
Also it is settled legal position that CENVAT credit should not be denied on mere technicalities or procedural lapses. HC of Punjab & Haryana ordered in case of Adfert Technologies Pvt. Ltd. Versus Union of India & Ors. (Reply dt. 27/12/2021)