Section 16 (2) of CGST ACT of 2017

This second proviso to section 16 (2) of the CGST ACT provides the where a recipient fails to pay to the supplier of goods or services or both, other than the suppliers on which tax is payable on reverse charges mechanism basis, the amount towards the value of supply along with tax payable thereon within a period of 180 days from the date of issue of invoice by the supplier, an amount equal to the Input tax credit availed by the recipient shall be added to his output tax liability along with interest thereon in  the manner prescribed.

(a) If payment is not made to the supplier within 180 days from the date of issue of invoice , an amount  equal to the input tax  credit by recipient shall be  added to his output tax liability ,  along with interest thereon

(b) But the recipient shall be entitled to re –  avail of  the credit of input tax on subsequent payment made by  him of the amount towards the value of supply of  goods or  services or both along with tax payable thereon

(c) In case of  part payment of  value of  supply   as  well as  tax amount within 180 days , reversal of  credit shall apply only   to  the extent of  proportionate  amount not paid by recipient

(d) This payment time limits concept apply both supply of goods as well as  services

(e) 180 days should be computed from date of invoice but irrespective of date of avail of ITC

(f) If supplier allowed the credit period beyond 180 days  based on their contract terms may be in purchase order then may not be any requirement for reverse of ITC with genuine terms

180 days criteria is applicable only from the date of issue of invoice by the supplier

But given some exceptions under this provisions this conditions of payment of value of supply plus tax within 180 days does not apply in the following circumstances

(i) supplies on which tax is  payable under reverse charges mechanism covered both section 9(3) & 9(4) of CGST Act

(ii) deemed supplies without consideration the value of supplies made without considerations as specified in schedule 1 of the said Act shall be deemed to be have been paid for the purposes of second provision to section 16 (2) Act. Hence ITC reversal will not apply

(iii) the value of supplies on account of any amount added in accordance with the provision section 15(2)(b) of CGST Act ( on that part of  VOS which is met by recipient )

Rule 37; registered person is furnish details in GSTR -2 of month following 180 days but

Since GSTR -2 is not operational, hence reporting is done in GSTR-3B with interest applicable on when made reverse of ITC

NOTE  : interest is  applicable from date of  availing of  credit and not from date of invoice

Rule 37 (3) determine the period for the   interest amount as registered person shall be liable to pay interest at rate notified under section 50 (1) of CGST Act for the period to start from the date of  availing of  credit on such supplies till the date when the amount is  added to the output tax liability is paid & also interest would be cost to the recipient

(1) can I reclaim of ITC revered earlier upon payment ?

Being a receipt can reclaim the credit reversed earlier due to non-payment to supplier on following making the payment section 16 (4)  of the CGST Act for availing credit time period whichever is earlier before the due date for furnishing return for the month of September of the following year or  annual return, but  sec 16 (4) of the CGST Act shall not apply for re-claiming the credit which was revered earlier under rule 37(4) of the CGST rule a receipt can re- claim at any time there is  no time bar

(2) can I  claim ITC on partial payment ?

Yes being a receipt can claim ITC on partial payment made , pro –rata value of tax paid may be by way of back calculations because  rule 37 (1) of the CGST rules talks about reverse of the amount of ITC availed of proportionately to such amount not paid to the supplier

(3) can I adjust debit / credit entries in books of  account by way of payment mode ?

Second proviso to section 16 (2) of the CGST ACT only provides the ITC reverse shall apply in case of non – payment to their supplier with time frame , there does not prescribe any particular mode of payment and also which mode neither indicated anywhere in CGST ACT  nor CGST rules

Ruling by  AAR West Bengalthe applicant consideration paid by way of setting off book debt is proper payment & hence ITC reverse under second proviso to section 16 (2)  is not applicable

Behind this provision government intention

For the supplier ensuring that what he receives payment from customer within 180 days time frame and also benefit to MSMEs, all MSME receivable should be paid within 45 days otherwise delayed payment is  a  major problem faced by MSMEs

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