Left out gst

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TARIQUE RIZVI (Querist)
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19 December 2018 Ours is a pvt limited company and was under tax audit as at 31st March 2018. For the Ay 2018-19 year ending March 18 we have filed income tax return of our company on 31st October 2018 and thereafter we have come to know that certain portion of ITC for the financial year 2017-18 remained unclaimed inadvertently in GSTR-3-B of September 2018. Now what to do? Whether any notification in connection with the said left-out ITC has been issued by the GST Department or the department will finally give us one more opportunity to claim in the Annual Return of GST due date of which 31st December 2018. I have heard that the ICAI has filed a request letter or petition in this connection.

SHUBHAM SHARMA

SHUBHAM SHARMA (Expert)
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20 December 2018 Dear Sir,
With respect to above query, it is humbly submitted that government has issued a press release dated 18th October 2018 wherein it was stated 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 supplier(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. 20thOctober, 2018.
However, it is to be noted that a writ is pending before Hon'ble Gujarat High Court challenging the validity of this press release on the ground that sub-section (4) of section 16 of the Act contemplates furnishing of return under section 39 thereof which is in FORM GSTR-3 whereas FORM GSTR-3B is to be furnished in the circumstances, as contemplated under sub-rule (5) of rule 61 of the rules Therefore, the impugned press release is contrary to the provisions of the Act and the rules as the rule 61(5) states that-
Rule 61(5) Where the time limit for furnishing of details in FORM GSTR-1 under section 37 and in FORM GSTR-2 under section 38 has been extended and the circumstances so warrant, the Commissioner may, by notification, specify that return shall be furnished in FORM GSTR-3B electronically through the common portal, either directly or through a Facilitation Centre notified by the Commissioner.”
Hence, the return prescribed under section 39(1) is originally GSTR-3 and commissioner has power to prescribe return in form GSTR-3B, only in circumstances mentioned above in rule 61(5).
HENCE IN MY PERSONAL OPINION THE ABOVE GROUND TAKEN IN THE WRIT IS INDEED AN IMPRESSIVE ONE AND MAY RESULT IN FAVORABLE POSITIONS TO THE ASSESSEE. THUS, IF THERE IS SUBSTANTIAL CREDIT LAPSING THEN YOU CAN TAKE A CALL.

THANKS AND REGARDS
CA SHUBHAM SHARMA
(GST PRACTITIONER)
CONTACT NO.9462302922

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