Page 40 - GSTL_18th June 2020_Vol 37_Part 3

J74 GST LAW TIMES [ Vol. 37
goods against Bill of entry as the said restriction only cover ITC related to the tax
in respect of the invoice or debit note.
Whether time-limit under Section 16(4) is legally valid?
The basic parameter for time restriction is linked to Section 16(4), that a
registered person shall not be entitled to take ITC in respect of invoice or debit
note after the due date of furnishing return under Section 39 for the month of
September following the end of financial year.
It is to be mentioned that originally this restriction under Section 16(4) is
linked to GSTR-3 return under Section 39 of the CGST Act, 2017. It was only due
to GSTN glitches that a shorter return in FORM GSTR-3B was introduced tempo-
rarily by amending Rules. It was not introduced in lieu of GSTR-3, filing of
which has only been kept in abeyance till further orders. It is submitted that
para 3 of the press release dated 18th October, 2018 says that, “With taxpayers
self-assessing and availing ITC through return in FORM GSTR-3B, the last date
for availing ITC in relation to the said invoices issued by the corresponding sup-
plier(s) during the period from July, 2017 to March, 2018 is the last date for the
filing of such return for the month of September, 2018 i.e. 20th October, 2018”.
Thus, GSTR-3B as summary report for the purpose of payment of tax and for
availing ITC. But there was dispute about GSTR-3B is not a return under
Section 39. As GSTR-3B has not been specified in the Act under any of the section
or rules and therefore it is not a return at all.
The Hon’ble Gujarat High Court in the case of AAP & Co., Chartered Ac-
countants v. Union of India reported in 2019 (26) G.S.T.L. 481 (Guj.), held that “It
would be apposite to state that initially it was decided to have three returns in a
month, i.e., return for outward supplies i.e., GSTR-1 in terms of Section 37, return
for inward supplies in terms of Section 38, i.e., GSTR-2 and a combined return in
Form GSTR-3. However, considering technical glitches in the GSTN portal as
well as difficulty faced by the taxpayers it was decided to keep filing of GSTR-2
and GSTR-3 in abeyance. Therefore, in order to ease the burden of the taxpayer
for some time, it was decided in the 18th GST Council meeting to allow filing of a
shorter return in Form GSTR-3B for initial period. It was not introduced as a re-
turn in lieu of return required to be filed in Form GSTR-3. The return in Form
GSTR-3B is only a temporary stop gap arrangement till due date of filing the re-
turn in Form GSTR-3 is notified. Notifications are being issued from time to time
extending the due date of filing of the return in Form GST-3, i.e., return required
to be filed under Section 39 of the CGST Act/GGST Act. It was notified vide No-
tification No. 44/2018-C.T., dated 10th September, 2018 that the due date of filing
the return under Section 39 of the Act, for the months of July, 2017 to March, 2019
shall be subsequently notified in the Official Gazette. Further it was held that
clarification could be said to be contrary to Section 16(4) of the CGST Act/GGST
Act read with Section 39(1) of the CGST Act/GGST Act read with Rule 61 of the
CGST Rules/GGST Rules. (Paras 30, 33).
As the Gujarat High Court has set aside GSTR-3B, there is no GSTR-3B
under the Act. Thereby the Government was brought amendment in Rule 61(5)
by way of CGST (Sixth Amendment) Rules, 2019 notified vide Notification No.
49/2019-C.T., dated 9-10-2019 wherein categorized GSTR-3B as a return under
Section 39 and has specified GSTR-3B to be filed retrospectively.
Therefore, it is pertinent to mention that by this restriction of time-limit
under Section 16(4), the vested right of ITC cannot be taken away from the tax-

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