As everyone is well aware that as per Section 16(4) of the CGST Act:
“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.”
Hence, if there is any credit that is still pending to be taken for F.Y. 20-21, then the same needs to be taken before the due date of furnishing of the return for the month of September 2021 under Section 39 of the CGST Act.
Now as per Rule 36(4) of the CGST Rules:
“Input tax credit to be availed by a registered person in respect of invoices or debit notes, the details of which have not been furnished by the suppliers under sub-section (1) of section 37, in FORM GSTR-1 or using the invoice furnishing facility shall not exceed 5 per cent of the eligible credit available in respect of invoices or debit notes the details of which have been furnished by the suppliers under sub-section (1) of section 37 in FORM GSTR-1 or using the invoice furnishing facility”
Now, if a taxpayer has taken eligible credit in his books of accounts and due to the fault of the supplier the same is not appearing in the GSTR 2A of the taxpayer even till the due date of filing of the return for the month of September then what is the recourse available to the taxpayer in such a scenario? Will the taxpayer be made to suffer for no fault of his?
In this regard I would like to bring to light Rule 37(4) of the CGST Rules which states as under:
“(4) The time limit specified in sub-section (4) of section 16 shall not apply to a claim for reavailing of any credit, in accordance with the provisions of the Act or the provisions of this Chapter, that had been reversed earlier.”
So, in my opinion if we avail the credit in the GST return as per the books of accounts if the same is still not appearing in GSTR 2A and reverse it in the same month then there will not be any consequence with regards to interest and as mentioned in Rule 37(4), the time limit mentioned in Section 16(4) for re-availing the credit will not apply.
Further reliance can also be placed on Circular No. 990/14/2014- Central excise-8 dated 19.11.2014 wherein it was stated that, “ The purpose of the amendment made by Notification No. 21/2014-CE (NT) dated 11.07.2014 is to ensure that after the issue of a document under sub-rule (1) of Rule 9, credit is taken for the first time within six months of the issue of the document. Once this condition is met, the limitation has no further application. It is, therefore, clarified that in each of the three situations described above pertaining to Rule 4(7), Rule 3(5B) or Rule 4(5) (a) of CCR, 2004, the limitation of six months would apply when the credit is taken for the first time on an eligible document. It would not apply for taking re-credit of amount reversed, after meeting the conditions prescribed in these rules”
Hence, going by the above provisions it can be said that with regards to re-availment of credit there is no time limit and this route can be taken by the taxpayers to avoid blockage of input tax credit taken in a genuine manner. However, this may also be subject to litigation and the hence suitable clarifications in this regard should be issued.