Facts
High Court’s decision The Madras High Court upon examining a plethora of judgements and while referring mainly to the Supreme Court and Delhi High Court’s decisions in Eicher Motors2 and Cellular Operators Association of India3 respectively, held that the credit of the cesses could be transitioned and utilised for payment under the GST. The High Court decided in favour of the taxpayer, challenging the denial of carry forward of credit of cesses for the following reasons:
TBM comments
This
decision of the Madras High Court is based on the principles of vested rights
accruing to a taxpayer to avail credit and the seamless flow of credit as
envisaged under GST, in the absence of specific provisions providing for
lapse of credit. However, the judgment does not clearly examine the
implication of Explanation 3 to section 140 of the CGST Act that came into
force from 1 February 2019 with retrospective effect from 1 July 2017.
Explanation 3 categorically states that the credit of cesses would not be
allowed as transitional credit under GST. Accordingly, the Revenue could
still continue to deny transition of credit of the cesses and further
litigate this issue.
|
1 Writ Petition No.4773 of 2018 & WMP Nos.5916 & 13148 of 2018 2 Eicher Motors Limited & Anr. v. Union of India [1999] (106) E.L.T. 3 (SC) 3 Cellular Operators Association of India & Others v. Union of India [W.P (Civil) No. 7837 of 2016] |
Thursday 7 November 2019
Madras High Court allows accumulated credit of cesses from CENVAT regime to be transitioned to GST
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