This is to update you about an important decision by Bombay High Court (‘HC’ / ‘Court’) in the case of L&T IHI Consortium v. UOI, W.P. No. 2980 of 2019. The Court held that Input Tax Credit (‘ITC’) shall be allowed to the recipient on Goods and Services Tax (‘GST’) charged by the supplier on advance payments.
Facts of the case
·
The
Petitioner, an unincorporated consortium of L&T and IHI, was awarded a
contract to undertake construction of bridges for Mumbai Metropolitan Region
Development Authority (“MMRDA”). The Petitioner then sub-contracted the
contract to members i.e. L&T and IHI.
·
These
back-to-back contracts stipulate milestone payments including advance payments.
The members raise advance receipt vouchers for collection of advances with
charging GST to the consortium and in turn, the consortium raises such advance
receipt vouchers to MMRDA by charging GST.
·
The
Petitioner filed for a writ before the Court challenging the legality of:
1.
GST
levy on advances; and
2.
ITC
ineligibility to the recipient (Petitioner)
·
On GST
levy, the Petitioner contended that the expression ‘supply…agreed to be made’
in the definition of supply under Section 7 is artificially expanding the scope
of supply whereas the Constitution proposes to levy GST on ‘supply of goods or
services or both’ and not ‘supply to be made’
·
On
eligibility of ITC, the Petitioner contended that if ITC is not allowed, then
there will be a situation where at the end of the contract, the Petitioner will
be left with unutilized ITC and refund will not be allowed too.
·
Department
rejected both the Petitioner’s arguments. On GST levy, it contended that
Parliament and State legislature are within their powers to defines the term
‘Supply’.
·
Regarding
ITC eligibility, the Department contended that ITC is ineligible on the
following grounds:
(a)
Services
are not yet received by the Petitioner;
(b)
Advance
Receipt Voucher is not a document prescribed for availing ITC under Section
16(2)(a) read with Rule 36 of CGST Rules.
HC Decision
·
On the
point of GST levy, Hon’ble HC held that the legislature is within its power to
cover GST on advance payments by including the expression ‘agreed to be made’
within the definition of supply under Section
7.
·
In
relation to eligibility of ITC on advances, the Court held that reading Section
16 with Section 13 of the CGST Act, the supply will be treated to be made to
the extent of payment made or invoices issued.
·
The Court further held that Advance Receipt Voucher
although not prescribed by Rules is still a document considered as proof of
payment of tax. This observation was made especially noting that representative
of GST Council did not dispute that such voucher should be recognised as
invoice and a tax paying document.
·
The Court, thus, ruled that ITC is eligible on GST
charged on advance payments.
. | Comments
·
In our humble view, the Court’s
observation that ITC is eligible on the strength of Advance Receipt Voucher,
needs greater deliberations. The judgement may be relied upon by businesses
formed like the Petitioner but applying it universally will lead to other
implication.
·
For instance, TR-6 challan or GAR-7
challan or DRC-03 challan are also tax paying document. In fact, they hold
better standing than Advance Voucher w.r.t. evidence of tax payment.
·
Anyways, taxpayer may at least rely on
this judgement for claiming ITC based on TR-6/GAR-7/DRC-03 challans.
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