If the tax is not claimed on time, it will not be payable

- Sales Tax - Soham Mashruwala

Under the GST law, the government imposes a very coercive provision on the supplier. Recently, the supplier whose turnover will be more than 100 crores cannot issue e-invoice after thirty days from the date of the supplier's bill. If a person has made a mistake, nothing can be done after thirty days. Similarly, the time limit of section 16(4) for claiming tax credit is also given to the tax payer. Ordinarily such a provision would be considered unconstitutional. But by the Andhra Pradesh High Court in Thirumlakonda Plywoods Vs. Assistant Commissioner State Tax WPNo. In the case of 24235 of 2022 dt. This provision has been declared legal on 18-7-2023. This matter is discussed in today's article.

The facts of the case

Late filing of GSTR 3B dated March, 2020 by the applicant. Late filing of form Rs. 10000/- lay fee was also paid. GSTR3B filed after the time given u/s 16(4) Form dated March, 2020 Accepted belated form by Govt but invalidated tax claim Aggrieved by petitioner Hon. Writ filed by Andhra Pradesh High Court.

Trader's presentation

Represented by the trader that he has filled the form dated March, 2020 paying all the liet fees. The reason for this delay is the widespread epidemic of Covid-19. Late fees and late forms accepted by the account so that tax credits sought after the time limit of Section 16(4) can be issued on a voluntary basis and the provision does not have to be strictly complied with. Further, the limitation of Article 16(4) violates Article 14, (19) (1) (9) and 300 A of the Constitution. The provision of Article 16(2) is non-obstructive clause. And Article 16(4) is to be considered in excess. So the taxes are definitely available. The right cannot be taken away by accepting the form late on one hand and levying late fee and on the other hand by not giving tax credit by hitting Section 16(4).

Presentation of Govt

The following submissions were made by the Government opposing the writ petitions.

(1) Tax claim is not an indefeasible right but rebate under law. (2) Provision of Section 16(4) cannot be considered unconstitutional as Parliament has specified time limit and other conditions to be complied with by the tax payer. (3) The constitution supported by the petitioner. It does not apply to Article 16(4) in any case. And the application of the petitioner should be rejected.

Judgment of the Court

According to the Hon'ble High Court, Article 16(2) and 16(4) are separate provisions. Under section 16(1) the tax payer is entitled to tax credit and the conditions of 16(2) have to be complied with. Thus, Article 16(2) supersedes Article 16(1). Article 16(2) lays down the conditions of taxation. And Article 16(4) declares the time limit. This makes it clear that both the provisions are different. And if Parliament had not intended to impose a time limit, Article 16(4) would not have been framed. A form can be filled to verify the turnover by paying the late fee. But taxes cannot be demanded. Thus, the provision of Article 16(4) is not unconstitutional.