Question 48:An assessee has claimed credit on the basis of invoice/ Bill of entry issued in January 17 in revised TRANS 1 stating it was left to take credit in his ER 1/ST 3. Now they have claimed credit of the same. During the verification of Trans 1 , whether it can be allowed or denied' And under which specific authority, section, rules, notification, circular' Kindly reply urgently. With regards


Answer The credit of ITC (CENVAT and balance of VAT) is available under section 140 .This section permits credit of the balance shown in the last return as per the information provided by you this credit is not taken in the returns filed under the earlier regime

You should first file amended return for the earlier period if this is possible then your are free from litigation but if this is not possible then you take decision as follow

If the amount is small then claim it and be ready to reverse it if no amendment is issued or no clarification is issued by the GST council and department raises objection

But if the amount is good and it is justified to go for litigation then claim the credit and go for litigation because as law point it should be given to you because as per Earlier laws you were entitled to take credit with in the time limit and you could claim it if there was no change in law

There are number of settled cases where it is decided that a fundamental benefit can not be denied for technical and procedural requirement.(REPLY dt. 23/1/2018)