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November 24, 2022

GSTR-1 can be amend & rectify the mistake of the wrong GSTIN as per Calcutta High Court

by CA Shivam Jaiswal in GST, Legal Court Judgement

GSTR-1  can be amend & rectify the mistake of the wrong GSTIN as per Calcutta High Court

Facts and Issue

The petitioner is a mining-related firm with the GSTIN 20AAGCM4615E1Z1. In the State of Jharkhand, it also manages the transportation of products for agencies of the federal government, such as the Eastern Coalfields Limited, Central Coal Fields Limited, and others. In the year 2018 petitioner’s company was engaged by bearing GSTIN No. 20AAACE7590E3ZX for providing services in relation to removal and re-handling of overburden from Dahernangi OC patch of Rajmahal Area . According to the petitioner, an unintentional error was made in the GSTIN of Eastern Coalfields Ltd. (GSTIN No. 20AAACE7590E3ZX) when the company filed its return in Form GSTR 1 for January 2019 in March 2019, i.e., within the deadline. The petitioner’s employee allegedly quoted the GSTIN of one MIPL-NKAS (JV) instead (GSTIN No.20AAEAM0162G1Z9). In June 2021, at the final settlement of its accounts with Eastern Coalfields Limited, the petitioner recognised its error and came before this court. The purchaser withheld payment for the invoice as the invoice was not reflected in the GSTR-2A return for the said period. It filed a writ petition seeking relief by way of rectifying GSTR-1.

Observation by the Court

The court  has considered the rival stand of the parties in detail and as borne out from the pleadings on record. The chronology of facts have been narrated in the foregoing paragraphs of this order. The orders passed earlier at relevant stages have also been extracted here in above to facilitate a considered resolution of the issue raised by the petitioner herein. For the purposes of appreciating the issue at hand the provisions of section 37, section 38, section 39 and sections 42 and 43 (as it existed prior to the omission under Finance Act, 2022 as notified w.e.f. 01.10.2022 under notification no.18/2022 dated 28.09.2022 of CBIC [(Department of Revenue) Ministry of Finance, Government of India] of the CGST Act.

For any tax period and which have remained unmatched under Section 42 and 43 (as it existed on the Statute prior to 01.10.2022), shall upon discovery of any error or omission there in rectify such error or omission in such manner as may be prescribed and shall pay the tax and interest, if any, in case there is short payment of tax on account of such error or omission in the return to be furnished for such tax period. Such form GSTR-1 is required to be filed by the supplier furnishing details of its outward supplies, the details of the invoices raised by the petitioner and the tax paid by the recipient. The provisions of CGST Act and JGST Act so far as the consideration of issue at hand are same. In fact, amendment in the nature of Finance Act, 2022 as notified w.e.f. 01.10.2022 has not yet been carried out in JGST Act to omit the expression “and which have remained unmatched under Section 42 or 43” under Section 37(3). Therefore, the said provision still remains on the statute

In the instant case it appears that on account of an inadvertent error, the entry relating to Tax Invoice No. 01/2018- 19 dated 17th January 2019 could not be reflected in the GSTR-1 filed by the petitioner against the GSTIN of Eastern Coalfields Limited (GSTIN No. 20AAACE7590E3ZX). Instead it was quoted in the GSTIN of  MIPL-NKAS (JV) [GSTIN No.20AAEAM0162G1Z9] which was not the recipient of such supplies. Though, Respondent  availed of such input tax credit bona fide believing that it had paid the taxes against such invoices, but on realizing the same reversed the entries in May 2022 as the same we are not reflected in his GSTR-2A return for the said period. The said entries, though reflected in the GSTR-2A of inadvertently, were not availed by Respondent  and rightly so, as it had not received any such supplies against the tax invoice in question. It further appears that the mechanism conceived under substituted Rule 59 specifically, sub rule (3) and (4) and Rule 60

(1) having not put into place by notification of form GSTR-2 and GSTR- 1A the petitioner could not discover such error in the absence of GSTR-2 being available to be filed by the recipient Respondent No.5. In the absence of notification of such forms GSTR-2 and GSTR-1A the Respondent No.6 could also not submit the relevant form GSTR-2 indicating such incorrect entries in its GSTR-2A due to incorrect entries in GSTR-1 by the petitioner. Since the mechanism provided for matching of details of inward supply furnished by a registered person or outward supply not being rightly declared by the supplier in his returns GSTR-1, not being place, such discrepancy could not be communicated to petitioner. The relevant form GST-MIS 1 and GST-MIS 2 as conceived under section 70 and 71 read with section 42 (prior to its omission under notification no.19/2022 and 18/2022 vide notification dated 28.09.2022 of CBIC) also having not been prescribed, the online mechanisms for discovery and correction of such mistake either by the supplier or by the recipient or both, could not take place. Petitioner therefore, appears to have a valid reason in not being able to rectify the entries in the GSTR-1 returns of March 2019 in the returns of September 2019 to be filed by 20th of October 2019 or the date of filing of the annual return, whichever is earlier. The error apparently came to the notice of the petitioner only during finalization of the accounts with respondent no.5 who had also by that time detected availment of ITC in lieu of the Tax Invoice No. 1/2018- 19 dated 17th January 2019, though not reflected in its GSTR-2. Petitioner approached this court immediately thereafter on 9th July 2022 seeking a direction upon the respondent GSTN to allow it to rectify returns. The detailed structured mechanism conceived under the JGST Act and the rules framed thereunder having not been put into place, the online portal did not permit such correction by any aggrieved registered person on its own. Therefore, the necessity for such an aggrieved registered person to approach this court under Article 226 of the Constitution of India. It is not in dispute that such incorrect entries in GSTR-1by Petitioner for the period January 2019 filed in March 2019 were not going to entail any additional tax impact. The rectification exercise would remain revenue neutral. Such TRAN I forms have been allowed to be filed online or manually in cases where TRAN-1 forms were not filed within the time prescribed by certain registered persons/ assessees. The judgment relied upon by the learned counsel for the petitioner are to that effect.

Having gone through the decisions cited in support by learned counsel for the petitioner and that the instant case does not present any additional tax impact, or loss of revenue for the State Exchequer and, in fact, such correction of relevant returns in case of the petitioner i.e.,GSTR-1, GSTR-2A in case of the respondent would allow to rightly avail the ITC against the tax paid under Tax Invoice number 1/ 2018-19 dated 17th January 2019 issued by the petitioner, we are of the considered view that interest of justice would be served if the petitioner is allowed to make the necessary correction in GSTR-1 form for January 2019. Such correction, if does not entail technical difficulties by the GSTN, may be allowed to be made online by GSTN by opening the portal for a limited period upon due communication to the petitioner and respondent as it would reflect corresponding correction in their GSTR-2A form for the relevant period. If such a course is not possible to be done online for technical reasons, the GSTN could allow the petitioner to make such corrections through manual mode. Let such correction be allowed to be made within a period of 8 weeks from the date of receipt of this order.

Writ petition is allowed in the manner and to the extent indicated here. It is left open for the Respondent to claim interest from the petitioner over the ITC which it had to reverse owing to error in filing of GSTR-1 in March 2019 by the petitioner by not mentioning the GSTIN of in respect of the Tax Invoice No. 1/2018-19 dated 17.01.2019

Conclusion

As a result, it was decided that allowing the petitioner to amend GSTR-1 would serve the interests of justice and not cause the government to lose any money. The petitioner was therefore granted eight weeks starting on the date of the decision to amend its GSTR-1.

Mahalaxmi-Infra-Contract-Ltd.-Vs-Goods-and-Services-Tax-Council-through-the-Secretary-Jharkhand-High-Court-1

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