Invoices rectified after filing of refund claim are valid invoices for grant of refund: Comm (Appeals), Jaipur
As per Rule 46 of CGST Rules, 2017 on Tax Invoices, a tax invoice referred to in section 31 shall be issued by the registered person containing the following particulars:
- Name, address and Goods and Service Tax Identification Number of the supplier.
- A consecutive serial number not exceeding 16 characters, in one or Multiple serios, containing alphabets or numerals or special characters- hyphen or dash and slash as “_” and “/” respectively. and any combination thereof, unique for a financial year
- Date of its issue
- Name, address and Goods anti Service Tax Identification Number or Unique Identify Number, if registered, of the recipient
- Name and address of the recipient and the address of delivery, along with the name of the State and its code, if such recipient is unregistered and where the value of the taxable supply is Rs 50,000 or more
- Name and address of the recipient and the address of delivery, along with the name of the State and its code, if such recipient is unregistered and where the value of the taxable supply is less than Rs 50,000 and the recipient requests that such details he recorded in the tax invoice:
- Harmonized System of Nomenclature code for goods or services
- Description of goods and services
- Quantity in case of goods and unit or Unique Quantity Code thereof
- Total value of supply of goods or services or both
- Taxable value of the supply of goods or services or both taking into account discount or abatement if any
- Rate of tax (Central tax, State tax, Integrated tax, Union territory tax or cess)
- Amount of tax charged in respect of taxable goods or services (Central tax, State tax, Integrated tax, Union territory tax or cess)
- Place of supply along with the name of the State, in the case of a supply in the course of inter-State trade or commerce
- Address of delivery where the same is different from the place of supply
- Whether the tax is payable on reverse charge basis and
- Signature or digital signature of the supplier or his authorised representative
Let us refer to the case of M/s. Baba Super Minerals Pvt. Ltd. Vs The Assistant of Commissioner CGST Division, where refund claim of unutilized ITC was rejected on the claim that tax Invoices were incomplete in accordance of Rule 46 of CGST Rules, 2017.
Facts of the Case
- The appellant filed an application for claim of refund of unutilized ITC (IGST, CGST and SGST)
- After considering the submission made by the appellant, the adjudicating authority had rejected part amount of refund claims due to various reasons.
- An order was issued to the appellant rejecting the refund claim.
- Aggrieved with the order of the adjudicating authority, appellant filed an appeal before the Office of the Commissioner (Appeals) – Central Excise and CGST.
Contention of the Adjudicating Authority on details not mentioned on the invoices
- The adjudicating authority denied part refund on the ground that the address of the recipient was not mentioned on the invoices of M/s Adinath Industries (supplier) and M/s Shri Sanwariya Trading Company (supplier)
- Further, in the copy of GSTR-2A, M/s Kamla Iron Store (supplier) was nowhere mentioned.
- GSTIN of the recipient was not mentioned on the invoice of M/s Om Metals Auto Pvt Ltd (supplier).
- Invoices submitted in reply to the deficiency memo were not acceptable as the details of address and GSTIN were not present on the invoices at the time of filing of refund claim and on the invoices submitted in reply to the deficiency memo the details of address and GSTIN were typed later on the same original invoice copies.
- Thus, according to the adjudicating authority, the appellant had contravened the provisions the Rule 46 and the Notification No.39/2018- Central Tax, dated 04.09.2018.
Observations of Commissioner (Appeals) on Compliance of Rule 46
- Rule 46 of CGST Rules, 2017 on Tax Invoices, mentions all the details that is to be contained in a tax invoice referred to in section 31 which is to be issued by the registered person
- In this regard, Commissioner (Appeals) found that the appellant had stated that now the invoices were already rectified by the suppliers on the request of the appellant and the copies of the same were also annexed with the appeal memo.
- Thus, there was compliance Rule 46 of the CGST Rules, 2017.
Reference to Rule 36 of the CGST Rules, 2017 by Commissioner (Appeals)
As per sub-rule (I) of Rule 36 of the CGST Rules, 2017, input tax credit shall be availed by a registered person, including the Input Service Distributor, on the basis of any of the following documents:
- an invoice issued by the supplier of goods or services or both in accordance with the provisions of Section 31
- an invoice issued in accordance with the provisions of Section 31(3)(f), subject to the payment of tax
- a debit note issued by a supplier in accordance with the provisions of Section 34
- a bill of entry or any similar document prescribed under the Customs Act, 1962 or rules made thereunder for the assessment of integrated tax on imports
- an Input Service Distributor invoice or Input Service Distributor credit note or any document issued by an Input Service Distributor in accordance with the provisions of rule 54(1).
As per sub rule (2), ITC shall be availed by a registered person only if all the applicable particulars as specified in the provisions of Chapter-VI were contained in the said document, and the relevant information, as contained in the said document, was furnished in FORM GSTR-2 by such person.
However, if the said document did not contain all the specified particulars but contained the details of the amount of tax charged, description of goods or services, total value of supply of goods or services or both, GSTN of the supplier and recipient and place of supply in case of inter-State supply, input tax credit may be availed by such registered person.
Observations of Commissioner (Appeals) on refund claim rejected on payment voucher not provided by the appellant for the RCM invoice of M/s Tristar Logistics Solutions‑
- The adjudicating authority had also claimed that as perSection 31(g) of the CGST Act, 2017, payment vouchers was required to be issued by the registered person who was liable to pay tax under Section 9(3) or Section 9(4) (i.e tax payable under Reverse Charge Mechanism – RCM).
- As the assessee has submitted copies of payment voucher only in respect of part RCM invoices, the remaining amount of CGST and SGST pertaining to the invoice of M/s Tristar Logistics Solutions was inadmissible to the assessee.
- In this regard, the appellant in their appeal memo stated that they had not paid to supplier yet and condition of payment within 180 days was not applicable in the case of inward supply covered under reverse charge mechanism.
- As per the second proviso toSection 16 of the CGST Act, the recipient of supply will not lose the ITC of the tax paid under RCM even if payment to the supplier is not made within 180 days of the supplies.
- Circular No. 37/11/2018-GST dated 15/03/2018 was issued to clarify various issues in relation to processing of claims for refund.
- In para 15 of the circular it was advised to not withheld refund claim due to minor procedural lapse or non-substantive errors or omission.
- Whereas, vide notification No. 39/2018-Central Tax dated 04/09/2018, proviso of sub rule 2 of rule 36 was inserted wherein it was mentioned that, if the said document does not contain all the specified particulars but contains the details of the amount of tax charged, description of goods or services, total value of supply of goods or services or both, GSTIN of the supplier and recipient and place of supply in case of inter-State supply then input tax credit may he availed by such registered person.
Commissioner (Appeals) observed that the export related refunds should not be rejected due to minor procedural lapse or non-substantive errors or omission which can be rectified subsequently. The appellant was directed to submit the original rectified invoices duly authenticated by the suppliers before the adjudicating authority for verification who may sanction the refund involved therein if the same is found in order and admissible otherwise.