Bombay Chartered Accountants Society 
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Sr. No. Issue in brief Background of the Issue Suggestions
1. Need to Revisit the relaxation granted by the Notifications issued in the month of April 2020

 

As our country is passing through an unexpected difficult period where almost all kind of commercial activities have become stand still. The entire country is in the lock down condition, and, either partial or full lock down may continue for some time, the Government may kindly reconsider various dates as have been prescribed through various notifications issued on 3rd April 2020. As these notifications were issued on the basis of first lock down period of 26th March to 14th April, but now the lock down has been extended till 31st May 2020 and partially it may continue for some more time. There is no economic activity in most of the sectors all over India, since 20th March 2020, and there is no likely hood of any substantial recovery in next three month 1. The due dates for filing returns may be extended as follows for all taxpayers

  • GSTR-3B for the month of March 2020: 30th June 2020
  • GSTR-1 for the month of March 2020 and for the quarter January to March 2020: 15th July 2020
  • GSTR-3B for the months of April, May and June 2020: 31st July 2020
  • GSTR-1 for the months of April, May and June 2020 and for the quarter April to June 2020: 15th August 2020
  • GSTR-1 for July 2020: 31st August 2020

2. Relief to MSMEs:

  • To provide some relief to MSMEs, as far as procedural aspects are concerned, it is suggested that all those who are falling in the category of Micro, Small and Medium Enterprises (as per revised definition) may kindly be permitted to file quarterly returns, instead of monthly returns, with effect from 1st April 2020. (GSTR-3B and GSTR-1).
2. Difficulty and Impossibility in making good the defaults in relation to the statutory compliances having due dates prior to the lock down period but pending as on the commencement of the lock down period. The collection of tax is the objective of any tax laws. However interest / late fees/penalties are compensatory/deterrent so that the taxpayers pay their taxes and make compliances on time. During the COVID -19 lockdown period starting from 20-03-2020, the non-payment of taxes or non-filing of returns is on account of the reasons beyond the control of the taxpayers.

Although some relief has been granted in cases where the due dates fall during the lock down period, in case of many assessees who could not file the earlier returns ( i.e. returns having due dates before lockdown period), the continuance of their default during the lockdown period was not deliberate on their part (Ex Many taxpayers have still not filed their annual returns for FY 2017-18 which were due in February 2020. Many other taxpayers could not file their tax returns because their application for revocation of cancellation of registration is pending and could not be attended to by Tax officers during the lockdown period. etc)

We request that the lockdown period commencing from 20-03-2020 be excluded for all the taxpayers from the computation of the period of delay for the application of late fees, interest/penalties, etc levied for all the related compliances like filing of returns, forms, payment of taxes, etc.

irrespective of whether the statutory due dates fall within the lockdown period or were before that.

3. Time limit for claiming Input Tax Credit.

 

At present, there is restriction of time limit for claiming ITC. It has to be claimed within 6 months from the end of FY. (due date for filing return for September or due date of annual return whichever is earlier). Further if payment to the supplier is not made within a period of 6 months, then input tax credit is liable to be reversed along with interest. 1. We request that the time limit for availing input tax credit may kindly be relaxed by allowing claim of ITC by the due date of filing annual return for relevant FY.

2. We also request that provision regarding reversal of ITC if the payment is not made to supplier within the specified time limit may be suspended and interest, if any, may be waived.

3. Provisions of section restricting claim of ITC to the extent of GSTR-2A may kindly be relaxed till 31st March 2021

4. Claims for availing transitional credit or revision thereof could not be made by many taxpayers within the due dates prescribed in the Rules. This lead to a lot of litigation. All these tax payers have sought relief from the Courts for admitting their claims / revised claims even after the prescribed due dates.  GST regime was implemented in the country from 1 July 2017. The time limit given in Rule 117 of the CGST Rules is 90 days from 1 July 2017. Time was extended for revising and filing TRAN-1 Form to 31 October 2017 and later on to 30 November 2017 & finally to 27 December 2017. GST was a new law a completely new system of accounting; reporting of turnover; claiming credit of prepaid taxes; and, payment of taxes was introduced with the implementation of the GST regime. A basket of Central and State taxes were merged into a single tax. New forms were introduced and, all of them were not even operationalized. The taxpayers required time to adapt to the new systems, which was introduced as a completely online system.

There were many technical issues in the GSTIN portal and it was functioning on trial and error basis in the initial period.

In this background, many taxpayers could not file the forms for availing the benefit of Transitional Credit in time due to various reasons. Some assessee approached the Courts challenging the time period for filing of the transitional forms with a prayer to allow them to file fresh/revised forms and avail the said benefit even after the statutory period for filing of the said forms is over. The conflicting judgments are passed on the issue as to whether the time limit prescribed in the Central Goods and Services Tax Rules, 2017 [ Rule 117] is ultra-vires the Act and is arbitrary and violative of Article 14 or not. Hon’ble Bombay High Court in the case of Nelco Ltd vs UOI [20-03-2020] has decided the matter against the taxpayers & Hon’ble Delhi High Court in the case of Brand Equity Treaties Ltd. vs UOI [ 05- 05-2020] has decided the same favoring the taxpayer. Hon’ble Delhi High Court held that, all the taxpayers may be permitted to file forms for availing transitional credit by 30-06-2020. Further many cases are pending before various high courts on this matter, where the taxpayers have sought a common relief of permitting them to file their claim or rectify their claim.

The credit already availed by the taxpayer in the earlier tax regime or the credit to which he became entitled to due to old laws being subsumed into a single legal framework is a valuable and substantive right. The filing of the claim is merely a matter of procedure to exercise the said right. Hence, we request that in the interest of justice, one last opportunity may be given to all the assessee who could not file or revise their transitional forms within the time limit prescribed in the law.

Hon’ble Delhi High Court has directed the Government to allow the filing of Transitional Credit Forms by 30-06-2020. Considering that from 20-03-2020 to 31-05-2020 was a lockdown period due to the COVID-19 situation, we request that one final opportunity be given to all the taxpayers (without going into the reasons for their failure to file/ revise their claims within the statutory time limit) within 3 months. [ say 01-07-2020 to 30-09-2020]

 

 

5. Mistakes in reporting intra-State supplies as inter-State supplies and vice-versa and challenges in obtaining refund Section 77 provides that if the tax payer has wrongly paid tax to the Central and State / UT Government on a transaction considered by him as a intra-State transaction and which is subsequently held to be an inter-State transaction the such a tax payer is first required to pay the correct tax and then claim a refund of tax wrongly paid. There are several cases pertaining to FY 2017-18, where in this error has been rectified at the time of filing the annual return. The tax payer after having paid the correct tax has approached the GST authorities for a refund and the applications are being routinely rejected on the basis that Section 54 has set a time limit of 2 years for application and that the claim is barred by limitation. The appropriate instructions may please be issued to clarify that the limitation period is applicable only to cases covered by Section 54 and the same does not extend to cases covered under Section 77.
6. Time period for Goods sent on consignment basis (within India and outside India) on sale or approval basis may be extended. The registered persons / exporters would have sent goods on a sale or approval basis, with the obligation to either sell the goods or bring them back within 6 month failing which the same would be treated as taxable supply u/s 31(7) read with Section 10 of the CGST Act.

In the above cases, the goods would have been removed/ dispatched many months ago and the time limit for bringing the back is likely to fall within the lockdown period. Your honour may appreciate that due to the lockdown there is a complete breakdown of the transport system and it is nearly impossible to fulfill the above condition. There is an apprehension that failure to fulfill the aforesaid obligation will trigger the time of supply condition and consequently a tax invoice will have to be raised as per Section 31 especially since Section 10 is excluded from the relief granted vide Notification 35/2020.

We request that the appropriate notification / clarification be issued to extend the time limit for cases where the goods could not be returned within the statutory period, since such statutory period expires during the lock down period
7. Tax payers whose aggregate turnover exceeded the prescribed limit for the purpose of GST registration around the lock-down period could not make the application for registration.  Any person who has crossed the prescribed turnover u/s 22 or who is otherwise required to take a compulsory registration u/s 24 may not be in a position to make an application for Registration within 30 days of the happening of the event requiring registration, if such event has happened around the lockdown period. In the absence of GST registration he may not be able to collect/ pay the taxes or to avail input tax credit. Unfortunately, the relaxation given by Notification No. 35/2020 does not apply to such registration-related provisions. We request that such person who were liable to obtain GST registration but could not obtain the registration (since the period of 30 days gets over during the lockdown period) may be permitted to collect taxes on a provisional basis (pending allotment of GST registration no.) and he shall be allowed the input tax credit on all inward supplies of goods/ services made during this unregistered period.

Alternatively, an exemption from obtaining registration should be granted to such taxable persons till the period the lockdown is lifted.

8. Difficulty in filing of the returns due to absence of digital  signature. Some assessees are statutorily required to file their returns/ GST forms using digital signature. During the lock-down period mandating work from home, many assessees did not have their digital signature with them at home in order to file the same. The Government allowed filing of GSTR-3B using Electronic Verification Code (EVC) instead of digital signature during lockdown period. However, this relaxation is not permitted for other returns and forms like GSTR-1, GSTR-7, DRC03, GSTR-9, GSTR-9C, etc. We request that filing of all Online returns / Forms may be enabled using the Electronic Verification Code (EVC) instead of Digital Signature during the lockdown period.
9. Expediency in Grant of Refund during the lockdown period

 

Even during the period of lockdown, various taxable persons, had applied for refund of accumulated input tax credit balances. In view of lockdown and the difficulties in cash flow faced by businesses, it is requested that the 90% provisional refund as envisaged in the GST law be released immediately as all such taxable persons. Further, it is requested that instructions should be given to the field formations to not insist on matching of input tax credit in view of the current pandemic where relaxation in filing of GSTR 1 has been granted to the taxable persons.
10. Registered persons should be permitted to report negative figures in GSTR-3B The current GST regime does not permit the filing of revised returns, consequently, if registered persons want to report and sales return or amendment in the outward supplies reported in GSTR-1 / 3B then the only option available to them is to report the same in the subsequent return..

Tax payers are required to net off the value of sales returns/ amendment against the value of outward supply reported in table 3.1 of GSTR-3B at the time of filing. In this case, tax payers are facing difficulty when making amendments, particularly when there is no corresponding outward supply to net off against in that month or in the subsequent months. Many times the tax payer has to carry out the amendment over several months. This triggers additional challenges –(a) queries from the GST authorities for mis-match in data reported in GSTR-1 vs GSTR-3B, (b) applying for refund under Section 77. Many a times there the tax payer is not able to reverse the amount simply because no further outward supply is made under that category in the subsequent months or just that the value of outward supply made in insignificant or due to the restriction placed on reporting negative values, the amendment cannot be carried out Hon’ble Delhi High Court in the case of Bharati Airtel Ltd vs UOI [ 05-05-2020] has already held that, such a practice is not in accordance with the law and assessee must be given option to revise the return of the same period for which the mistake/ error/ event relates.

We request that till the time the IT functionality for revision in the return is permitted, the assessee may be permitted to enter the negative figures in the returns of the subsequent period and the corrections in the Electronic Ledgers may be effected on the basis of such reporting. The existing GSTR-3B form may be altered to provide a separate field for disclosing the prior period adjustments.
11 Limitations of making amendments in Form GSTR-1

 

While the amendment to B2B sales is possible to report in the GSTR-1 (as B2BA transactions or CDNR), amendment to B2C transactions faces several hurdles. The GSTN portal permits amendments for a month / POS only once. Such a restriction is not only a harsh burden on the tax payer, such restriction are contrary to the Act and the Rules thereunder. Such a restriction may be removed and the assessee may be permitted to make amendments more than once for a month.
12. Documentary Relaxations for movement of goods during lock-down

 

As your good self will appreciate, due to lockdown, physical movement of people have been restricted. In many cases, although E-Way bills / Invoices were generated, it was difficult for the supplier to handover the physical copy of the said E-way bill / Invoices. In some cases, although invoices could be printed, it was difficult to obtain the signature of authorised signatory. In many cases, since drivers did not carry smart phones, evensending soft copy of the invoice/ E-way bill to the transporter is a challenge. It is requested that for invoices issued during the period of lockdown, the requirement that transportation of goods should be accompanied by physical documents such as invoice/ E-way bill etc should be dispensed with. The movement of goods should be considered as being made in accordance with the law if the transporter could provide

– Details like E-Way Bill No. generated on the portal & Invoice No. on the basis of which the E-way Bill is generated.

– Soft copy (scanned copy / photograph of the invoice, etc) Physical copies of unsigned invoices matching with particulars as per E-way bill etc.

13 Document verification at the time of granting GST registration may be relaxed Many assessee are facing problems during the grant of registration as the officers are rejecting the registration applications at document verification stage for miscellaneous defects ( such as address proof not matching, name on the proof not proper etc). Some of the applications are made by the existing assessee ( i.e. assessee having GST registration in other states, there being change in the constitution on account of merger, demerger, etc. We request that appropriate instructions be issued to the field officers stating that such registration applications, especially where the applicant already has existing registration in other states / their Directors are part of entities already registered with GST be approved on priority basis and no objections should be raised for miscellaneous defects. Further miscellaneous defects should not be a ground for rejection of the registration, if the identity of the applicant is not in question. This will also help in ease of doing business.

Thanking you
Yours sincerely,

Manish Sampat
President,
Bombay Chartered Accountants Society 
Deepak Shah
Chairman,
Indirect Tax Committee
Sunil Gabhawalla
Co-Chairman,
Indirect Tax Committee

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