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With a slew of Circulars issued on 27 December 2022, the CBIC has clarified various issues in relation to GST. Following are the key highlights of the Circulars:
Circular No. 183/15/2022-GST dated 27 December 2022
ITC Difference in GSTR-3B vs. GSTR-2A during F.Y. 2017-18 and F.Y. 2018-19
In cases, where the supplier erred in filing Form GSTR-1, due to which the supplies made in the relevant tax period is not reflected in Form GSTR-2A of the recipients, the ITC availed on such supply shall be allowed basis the fulfilment of the following conditions:
· All the conditions of section 16 of the CGST Act is fulfilled in respect of the ITC availed.
· The ITC is not been blocked under section 17 of the CGST Act and further, the ITC has been availed within the time period specified u/s. 16 (4) of the CGST Act.
· In cases of section 16(2)(c) of the CGST Act, where the difference is because of late filing or non-filing by the supplier, credit will be allowed if:
a. In respect of difference for the said financial year exceeds Rs 5 lakh, the recipient shall produce a certificate for the concerned supplier from the Chartered Accountant or the Cost Accountant, certifying that supplies in respect of the said invoices of supplier have actually been made by the supplier and the tax on such supplies has been paid by the said supplier.
b. In respect of difference for the said financial year is upto Rs 5 lakh, the recipient shall produce a certificate from the concerned supplier to the effect that said supplies have actually been made by him and the tax on said supplies has been paid by the said supplier.
· However, for the period FY 2017-18, as per proviso to section 16(4) of CGST Act, the aforesaid relaxations shall not be applicable to the claim of ITC made in the FORM GSTR-3B return filed after the due date of furnishing return for the month of September, 2018.
· These instructions will apply only to the ongoing proceedings in scrutiny/audit/investigation, etc. for FY 2017-18 and 2018-19 and not to the completed proceedings.
Circular No. 184/16/2022-GST dated 27 September 2022
ITC availability where the place of supply is concerned foreign destination and not the State in terms Section 12(8) of the IGST Act
· In cases where the transportation of goods is to a place outside India, and where the supplier and recipient of the said supply of services are located in India, the supply of services would be considered as inter-State supply in terms of section 7(5) of the IGST Act
· Further, there is no such provision u/s. 16 and u/s.17 of the CGST Act for restricting availment of ITC by the recipient located in India if the place of supply of the said input service is outside India. Accordingly, the recipient of such service shall be eligible to avail ITC in respect of the IGST so charged by the supplier
Circular No. 185/17/2022-GST dated 27 December 2022
Re-determination of recovery proceedings
· In cases where direction is issued by the Appellate authority to re-determine the amount of tax payable by the Noticee by deeming the notice to have been issued u/s. 73(1) of CGST Act (as against the original notice being issued u/s. 74) in in terms of section 75(2) of the said Act, the issuance of the redetermination of tax, interest and penalty payable should be within a period of 2 years from the date of communication of the said direction in terms of section 75(3) of the CGST Act.
· In cases where the proper officers had issued notices u/s. 74, which were subsequently determined to have been issued u/s. 73 by way of a deeming fiction as in terms of Section 75(2), the de novo proceedings for the recovery u/s. 73 would be applicable only where the such notices issued u/s. 74 (deemed to have been issued u/s. 73), were issue within the limitation of Section 73(10).
· In cases where the Notice have been issued beyond the said period, the entire proceeding shall dropped, being hit by the limitation of time as specified in section 73.
Circular No. 186/18/2022-GST dated 27 December 2022
Taxability of No Claim Bonus offered by Insurance companies
· No claim bonus is a permissible deduction u/s. 15(3)(a) of the CGST Act, and where such NCB is provided in the invoice issued by the insurer to the insured, GST shall be leviable on actual insurance premium amount, payable by the policy holders to the insurer.
· Further, exemption, from generation of e-invoices in terms of Notification No. 13/2020- Central Tax dated 21st March, 2020 is for the entity as a whole and is not restricted by the nature of supply being made by the said entity.
Circular No. 187/19/2022-GST dated 27 December 2022
Treatment of GST dues where proceedings have been finalised under IBC, 2016
In cases where demand for recovery has been issued in FORM GST DRC-07/DRC 07A against the corporate debtor, and where under IBC the proceeding have been finalised by reducing the amount of statutory dues payable by the corporate debtor to the government under CGST Act or under existing laws, then the jurisdictional Commissioner shall issue an intimation in FORM GST DRC-25 reducing such demand, to the taxable person
Circular No. 188/20/2022-GST dated 27 December 2022
Procedure for refund application for unregistered persons
· The unregistered person, who wants to file an application for refund u/s. 54(1) of CGST Act, in cases where the contract/agreement for supply of services of construction of flat/ building has been cancelled or where long term insurance policy has been terminated, shall obtain a temporary registration on the common portal
· Thereafter, the application for refund shall be filed in FORM GST RFD-01 on the common portal under the category ‘Refund for unregistered person’.
· Further, the applicant shall upload statement 8 (in pdf format) and all the requisite documents as per the provisions of rule 89(2) of the CGST Rules
The information provided in this update is intended for informational purposes only and does not constitute legal opinion or advice. Readers are requested to seek formal legal advice prior to acting upon any of the information provided herein. This update is not intended to address the circumstances of any particular individual or corporate body. There can be no assurance that the judicial/ quasi judicial authorities may not take a position contrary to the views mentioned hereinrra quis.
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