Page 44 - GSTL_2nd July 2020 _Vol 38_Part 1

J18 GST LAW TIMES [ Vol. 38
The position GST payable under RCM and claiming of ITC
thereof in the case of supply received from registered person
are subject to following conditions :-
(a) Since the supplier is a registered person, therefore he
has to issue the tax invoice under Section 31(1) or (2)
of the CGST Act, 2017, while making the supply, and
mark the invoice as “tax to be paid under the reverse
charge by the recipient of supply”. In order to claim
ITC the invoice has to comply with provisions of the
CGST Rule 36(1)(a).
(b) As per CGST Section 16(c), tax has been paid by the
recipient under the provision of Section 49(4), which
means that the recipient has paid the amount in cash.
As per Section 2(98) reverse charge means the liabil-
ity to pay tax by recipient of goods and/or services
instead of supplier of goods and/or services there-
fore liability to pay tax of goods and services re-
ceived by supplier will be shifted on recipient. There-
fore, the condition of payment of tax to Government
by supplier as stipulated under Section 16(2)(c) is
shifted to the recipient. It follows that the first recipi-
ent has to make the payment of GST to claim the
same as ITC. The payment of tax and claiming of the
same as ITC will be done simultaneously while filing
GSTR-3B.
(c) Now the question is whether the invoice received
from the supplier of goods and services under Sec-
tion 31 of CGST Act, 2017 is the same invoice that has
been discussed in Section 16(4) of CGST Act, 2017.
Apparently the two are the same.
(d) The above discussion leads to the question that in
case the purchaser has not paid the GST under the
RCM on the purchases of year 2017-18 made from
registered persons and is now paying the same say in
the month of May, 2020 then can he claim the corre-
sponding ITC in the month of May, 2020?
(e) By reading the Rule 36(1)(a) along with Section 16(4)
of CGST Act, 2017 we can conclude that
(i) Supplier has in his possession the invoice as is-
sued by his supplier in compliance of Section
31(1) or 31(2) of CGST Act, 2017.
(ii) The invoice is against the supply of goods and/or
services during the year 17-18 and also of any
date up to 31st March, 2018.
(iii) And although the supplier has paid the tax now
under the RCM on these supply but tax invoice
and period of service/movement of goods per-
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