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The 48th Goods and Services Tax (GST) Council Meeting, which was scheduled virtually under the chairmanship of the Union Finance Minister Nirmala Sitharaman after a gap of more than 5...
The 48th Goods and Services Tax (GST) Council Meeting, which was
scheduled virtually under the chairmanship of the Union Finance
Minister Nirmala Sitharaman after a gap of more than 5 (five)
months from the last meeting and probably the last meeting before
the Union Budget 2023, had many items on its agenda which among
others also included some important clarification on ongoing GST
issues.
However, the long pending and probably the most awaited item
could not be discussed in this meeting viz., GST implications on
online gaming and casinos as the report on this issue was only
submitted a couple of days ahead of the meeting by the Group of
Ministers which did not leave sufficient time for the GST Council
to analyse and conclude. Apart from this, even the agendas relating
to setting up of an appellate tribunal, discussion on rate changes
on various items among others were not taken up during this
meeting.
2. SUMMARY OF CLARIFICATIONS
We have provided a summary of some of the important
clarifications released by the Government in respect of common
matters concerning all sectors. This summary will help the readers
in getting an overview of the updates released, however, please do
the read these updates along with the original notification(s)
and/or circular(s).
SL.NO
ISSUES
CLARIFICATION
CLARIFICATION
REFERENCE
I.
Clarification to deal with difference in Input Tax Credit
("ITC") availed in Form Goods and
Services Tax Return ("GSTR") -3B as
compared to that detailed in Form GSTR 2A for Financial Year
("FY") 2017-18 and FY 2018-19 alone.
Wherein clarification for different scenarios as envisaged below
are provided:
Where the supplier has failed to file FORM GSTR-1 for a tax
period but has filed the return in FORM GSTR-3B for said tax
period, due to which the supplies made in the said tax period do
not get reflected in FORM GSTR-2A of the recipients.
Where the supplier has filed FORM GSTR-1 as well as return in
FORM GSTR-3B for a tax period but has failed to report a particular
supply in FORM GSTR-1, due to which the said supply does not get
reflected in FORM GSTR-2A of the recipient.
Where supplies were made to a registered person and invoice is
issued as per Rule 46 of Central Goods and Services Tax Rules, 2017
("CGST Rules") containing Goods and
Services Tax Index Number ("GSTIN") of
the recipient, but supplier has wrongly reported the said supply as
B2C supply, instead of B2B supply, in his FORM GSTR-1, due to
which the said supply does not get reflected in FORM GSTR-2A of the
said registered person.
Where the supplier has filed FORM GSTR-1 as well as return in
FORM GSTR-3B for a tax period, but he has declared the supply with
wrong GSTIN of the recipient in FORM GSTR-1
Where the supplier has filed FORM GSTR-1 as well as return in
FORM GSTR-3B for a tax period, but he has declared the supply with
wrong GSTIN of the recipient in FORM GSTR-1
It is also relevant to highlight that the Karnataka High Court
has recently, in a writ petition on the issue relating to quoting
of wrong GSTIN, allowed the claim of the Petitioner and has
observed that the issue involved is squarely covered by the said
Circular. Further, even though the said Circular was issued in
respect of FY 2017-18 and 2018-19, the High Court was pleased to
make the same applicable in respect of transactions pertaining to
FY 2019-201 .
The proper officer shall first seek the details from the
registered person regarding all the invoices on which ITC has been
availed by the registered person in his FORM GSTR 3B, but which are
not reflecting in his FORM GSTR 2A.
He shall then ascertain fulfilment of the following conditions
of Section 16, 17, and 18 of Central Goods and Services Tax Act,
2017 ("CGST Act") in respect of the ITC
availed on such invoices.
In case the difference in the ITC for the said financial year
exceeds 5 lakhs, the proper officer shall ask the registered person
to produce a certificate for the concerned supplier from the
chartered accountant or the cost accountant certifying that
supplies in respect of the said invoices of supplier have actually
been made by the supplier to the said registered person and the tax
on such supplies has been paid by the said supplier in his return
in FORM GSTR 3B.
In case the difference is upto INR 5,00,000 (Indian Rupees Five
Lakhs), the proper officer shall ask the claimant to produce a
certificate from the concerned supplier to the effect that said
supplies have actually been made by him to the said registered
person and the tax on said supplies has been paid by the said
supplier in his return in FORM GSTR-3B.
Having said the above, please note that these guidelines are
clarificatory and may be app
Circular no. 183/15/2022- GST
dated December 27, 2022
II.
Clarification on the entitlement of ITC and the type of supply
under the below mentioned scenario:
In case of supply of services by way of transportation of
goods, including by mail or courier, where the transportation of
goods is to a place outside India, and where the supplier and
recipient of the said supply of services are located in India, what
would be the place and type of supply of the said services.? Would
ITC be eligible?
The place of supply as provided under the proviso to the
relevant provisions is given to be the destination of the
goods.
Further, the said supply would be integrated supply as the
location of supplier is in India and place of supply is outside
India.
ITC in respect of such supplies is not restricted to the
recipient who is located in India of course subject to fulfilment
of credit availment conditions as provided under the GST
legislations.
It is also clarified that the supplier of service shall report
place of supply of such service by selecting State code as '96-
Foreign Country' from the list of codes in the dropdown menu
available on the portal in FORM GSTR1.
Circular no. 184/15/2022- GST
dated December 27, 2022.
III.
Clarification with regard to applicability of provisions of
subsection (2) of section 75 of CGST Act, and its effect on
limitation.
Sub-section (2) of section 75 of CGST Act provides that in cases
where the appellate authority or appellate tribunal or court
concludes that the notice issued by proper officer under subsection
(1) of section 74 is not sustainable for reason that the charges of
fraud or any willful-misstatement or suppression of facts to evade
tax have not been established against the person to whom such
notice was issued then the proper officer shall determine the
tax payable by the notice, deeming as if the notice was issued
under sub-section (1) of section 73.
What would be the time period and manner for redetermination of
the tax, interest and penalty payable by the notice in such
cases?
It is clarified that the proper officer is required to issue
the order of redetermination of tax, interest, and penalty payable
within the time limit as specified in under subsection (3) of
section 75 of the GST legislation, i.e., within a period of two
years from the date of communication of the said direction by
appellate authority or appellate tribunal or the court, as the case
may be.
The manner of demand re-determination is also explained in
detail vide this circular.
Circular no. 185/15/2022- GST
dated December 27, 2022.
1. Wipro Ltd India vs. The Assistant Commissioner of
Central Taxes and Ors., TS-02-HC(KAR)-2023-GST
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