GST WEEKLY UPDATE : 23/2022-23 (04.09.2022) By CA Vipul Khandhar

By CA Vipul Khandhar

1. Changes in Table 4 of Form GSTR-3B for enabling taxpayers to correctly report information regarding ITC availed, ITC reversal and ineligible ITC:

The Notified changes of Table 4 of GSTR-3B have been incorporated in GSTR-3B and are available on GST Portal w.e.f September 01, 2022. The taxpayers are advised to report their ITC availment, reversal of ITC and ineligible ITC correctly as per following format of Table 4of GSTR-3B at GST Portal for the GSTR-3B to be filed for the period August 2022 onwards. These changes in reporting in Table 4 are not applicable for period prior to August-2022 period. 

 Table 4 – Eligible ITC

From the format of Table 4, following is noteworthy:

1. All non-reclaimable reversal of ITC needs to be reported in table 4(B)(1)
2. All reclaimable ITC reversals may be reported in table 4(B)(2). It should be noted that ITC reversed under 4(B)(2) can be reclaimed in table 4(A)(5) at appropriate time and the break-up detail of such reclaimed ITC should be provided in 4(D)(1) in the same return.

III. The ITC not-available mentioned in GSTR-2B of the taxpayer has to be reported in 4(D)(2) of table 4.

2. Any ITC availed inadvertently in Table 4(A) in previous tax periods due to clerical mistakes or some other inadvertent mistake maybe reversed in Table 4(B)2.

Corresponding changes in GSTR-2B and auto-population of GSTR-3B at present are under development and the taxpayer should reflect the changes required in GSTR-3B return by way of editing the pre-filled entries so as to correctly self-assess the GSTR-3B return. These changes would be available on GST Portal in due course of time.

Taxpayers may also refer to CBIC Circular No. 170/02/2022-GST dated July 06, 2022 for detailed clarification on reporting of ITC availment, ITC reversal and Ineligible ITC in GSTR-3B.

2. GSTN would Open common portal for filing transitional credit through Tran 1 and Tran 2 w.e.f 01.10.2022:

The Goods and Service Tax Network (“GSTN”) has issued an Advisory dated September 03, 2022 regarding Supreme Court allowing 4 weeks extension to open the common portal for Tran 1 & Tran 2.

The Hon’ble Supreme Court while hearing an application from GSTN, has allowed the extension of 4 weeks time to comply with their order dated July 22, 2022 issued in the matter of UOI & Anr. V/s Filco Trade Centre Pvt. Ltd. & Anr. bearing SLP (C) nos. 32709-32710/2018. Accordingly, GSTN would open the common portal for filing transitional credit through Tran 1 and Tran 2 w.e.f October 01, 2022.

3. The Guidelines issued for prosecution under GST Instruction No. 04/2022-23 [GST-Investigation] issued on 01.09.2022:

The CBIC has issued instructions for the GST investigation officers which are to be followed while launching any prosecution proceedings exhibiting criminal charges against any person. CBIC acknowledged that prosecution has serious repercussions for the accused. Standard of proof required in a criminal prosecution is higher. Case has to be established beyond reasonable doubt. Evidence collected against the person should be adequate to establish that the person had guilty mind or fraudulent intention for committing the offence.

• Prosecution should not be launched in cases of technical nature, or where additional claim of tax is based on a difference of opinion regarding interpretation of law.
• In the case of public limited companies, prosecution should not be launched indiscriminately against all the Directors of the company. It should be restricted to only persons who oversaw day-to-day operations of the company and have taken active part in committing the tax evasion etc. or had connived at it.
• The CBIC continues to maintain its stand that decision in adjudication proceedings is not necessary before initiating criminal prosecution. Adjudication proceedings and criminal proceedings can be launched simultaneously. Prosecution should normally be launched where amount of tax evaded is more than Rs.5 crore.
• However, in cases of habitual evaders or in cases where arrest have been made during course of investigation, prosecution could be initiated irrespective of monetary limit. Habitual evader is defined as “a company/taxpayer who is involved in 2 or more cases of confirmed demand (at 1st adjudication level or above at appellate levels) of tax evasion involving fraud, suppression of facts, in the past 2 years such that the total tax evaded exceeds Rs.5 crore.” All efforts should be made to file prosecution complaint in the court within 60 days of arrest.

4. AAR & Judicial Decisions:

(i) AAR On GST on fabrication & mounting of Tanker & Tripper on chasis:

(Applicant – Hasmukhlal Jivanlal Patel)

In cases where the chassis is provided/supplied by an unregistered principal to the applicant for carrying out the fabrication and mounting work on the chasis owned by them, such activity is covered under the description “Manufacturing services on physical inputs (goods) owned by others” as appearing at Sr. No. 26(iv) of Notification No. 11/2017 Central Tax (Rate) as amended vide Notification No. 20/2019- Central Tax (Rate) and the applicable rate would be 18%.

We find that the above position has also been clarified under Circular No. 126/45/2019-GST dated 22.11.2019 and the relevant text of the clarification is as follows:

In view of the above, it may be seen that there is a clear demarcation between scope of the entries at item (id) and item (iv) under heading 9988 of Notification No. 11/2017-Central Tax (Rate) dated 28-06-2017. Entry at item (id) covers only job work services as defined in section 2 (68) of CGST Act, 2017, that is, services by way of treatment or processing undertaken by a person on goods belonging to another registered person. On the other hand, the entry at item (iv) specifically excludes the services covered by entry at item (id), and therefore, covers only such services which are carried out on physical inputs (goods) which are owned by persons other than those registered under the CGST Act.

The above clarification clearly shows that the activity of manufacturing services on physical inputs owned by others would be classifiable under ‘Job-work’ services in case the goods are received from Registered person and ‘Other Manufacturing Services’ in case the goods are received from Unregistered person.

In view of above Activity of fabrication and mounting of Tanker and Tripper on the chasis supplied and owned by the principal is supply of Service.

18% GST payable on fabrication & mounting of Tanker and Tripper on chasis supplied and owned by principal.

Supply of Service merits classification 998882 ‘Other transport equipment manufacturing services’ and Tax Rate is 18% in both the cases (i) Chasis supplied by GST Registered person (ii) Chasis supplied by un-registered person i.e. not having GSTIN.

(ii) AAR On GST on Canteen Service charges of employees or contractual workers:

(Applicant – Troikaa Pharmaceuticals Limited)

1. GST, at the hands of M/s Troikaa, is not leviable on the amount representing the employees portion of canteen charges, which is collected by M/s Troikaa and paid to the Canteen service provider.
   2. GST, at the hands of M/s Troikaa, is leviable on the amount representing the contractual worker portion of canteen charges, which is collected by M/s Troikaa and paid to the Canteen service provider
2. ITC on GST paid on canteen facility is admissible to M/s Troikaa under Section 17 (5)(b) of CGST Act on the food supplied to employees of the company subject to the condition that burden of GST have not been passed on to the employees of the company.
   4. ITC on GST paid on canteen facility is not admissible to M/s Troikaa under Section 17 (5)(b) of CGST Act on the food supplied to contractual worker supplied by labour contractor.

Disclaimer:

This publication contains information for general guidance only. It is not intended to address the circumstances of any particular individual or entity. Although the best of endeavour has been made to provide the provisions in a simpler and accurate form, there is no substitute to detailed research with regard to the specific situation of a particular individual or entity. We do not accept any responsibility for loss incurred by any person for acting or refraining to act as a result of any matter in this publication.

(Author is a well known Chartered Accountant practicing at Ahmedabad in the field of Direct & Indirect Taxes)