1. INPUT TAX CREDIT UNDER MODEL GST LAW
Rohini Aggarawal
B. Com (H), CWA, CA, LLB

2. Definitions – Input Tax
“Input tax” has been defined in section 2 (57) of CGST/SGST Act as :
"input tax" in relation to a taxable person, means the {IGST and CGST}/{IGST and SGST} charged on any supply of goods and/or services to him which are used, or are intended to be used, in the course or furtherance of his business and includes the tax payable under sub-section (3) of section 7.
It implies that input tax consist of IGST & CGST in CGST Act and IGST & SGST in SGST Act.
The underlying supply of goods and/or services should be used or intended to be used by the taxable person in the course or furtherance of his business.
Credit of tax paid on reverse charge basis can also be taken by the taxable person.

3. Definitions – Input Tax
“Input tax” has been defined in section 2 (1)(d) of IGST Act, as :
"input tax" in relation to a taxable person, means the Integrated Goods and Services Tax, Central Goods and Services Tax or State Goods and Services Tax, as the case may be, charged on any supply of goods and/or services to him which are used, or are intended to be used, in the course or furtherance of his business and includes the tax payable under sub-section (3) of section 4.
In the IGST Act, input tax consists of all three taxes, IGST, CGST and SGST.
Credit of all three can be used for discharging IGST liability.

4. Definitions – Input
“Input” has been defined in section 2 (54) of MGL, as :
“input” means any goods other than capital goods, subject to exceptions as may be provided under this Act or the rules made thereunder, used or intended to be used by a supplier for making an outward supply in the course or furtherance of business;
Subject to exceptions/ exclusions - In MGL Law/ Rules
Used or intended to be used by supplier for making outward supply
In the course of furtherance of business

5. Definitions – Input Service
“Input Service” has been defined in section 2 (55) of MGL, as :
“input service” means any service, subject to exceptions as may be provided under this Act or the rules made thereunder, used or intended to be used by a supplier for making an outward supply in the course or furtherance of business.
Subject to exceptions/ exclusions - In MGL Law/ Rules
Used or intended to be used by supplier for making outward supply
In the course of furtherance of business

6. Outward Supply
Outward supply in relation to a person, in terms of section 2 (73) of MGL, shall mean “supply of goods and/or services, whether by sale, transfer, barter, exchange, licence, rental, lease or disposal made or agreed to be made by such person in the course or furtherance of business except in case of such supplies where the tax is payable on reverse charge basis. “
It covers all forms of supply excluding supplies where GST is payable by the recipient under reverse charge mechanism.

7. Components of Credit – Capital Goods
“Capital Goods” has been defined in section 2 (20) of MGL, as :
“capital goods” means: -
(A) the following goods, namely:-
(i) all goods falling within Chapter 82, 84, 85, 90, heading 6805, grinding wheels and the like, and parts thereof falling under heading 6804 of the Schedule to this Act;
(ii) pollution control equipment;
(iii) components, spares and accessories of the goods specified at (i) and (ii);
(iv) moulds and dies, jigs and fixtures;
(v) refractories and refractory materials;
(vi) tubes and pipes and fittings thereof;
(vii) storage tank; and
(viii) motor vehicles other than those falling under tariff headings 8702, 8703, 8704, 8711 and their chassis but including dumpers and tippers

8. Components of Credit – Capital Goods
used -
at the place of business for supply of goods; or
outside the place of business for generation of electricity for captive use at the place of business; or
for supply of services,
“Place of business” has been defined in section 2 (75) of MGL, as :
Place of business includes
a place from where the business is ordinarily carried on, and includes a warehouse, a godown or any other place where a taxable person stores his goods, provides or receives goods and/or services; or
a place where a taxable person maintains his books of account; or
a place where a taxable person is engaged in business through an agent, by whatever name called.”

9. Components of Credit – Capital Goods
(B) motor vehicle designed for transportation of goods including their chassis registered in the name of the supplier of service, when used for (i) supplying the service of renting of such motor vehicle; or (ii) transportation of inputs and capital goods used for supply of service; or (iii) supply of courier agency service; (C) motor vehicle designed to carry passengers including their chassis, registered in the name of the supplier of service, when used for supplying the service of- (i) transportation of passengers; or (ii) renting of such motor vehicle; or (iii) imparting motor driving skills; (D) Components, spares and accessories of motor vehicles which are capital goods for the taxable person.

10. Components of Credit – Capital Goods
Credit of capital goods is to be availed in the same manner as credit of inputs by way of apportioning the credit into taxable and non-taxable output.
The necessity of separate definitions of inputs and capital goods is required for
Reversal of ITC on removal of capital goods
Differential treatment in case of goods sent for job work
Differential treatment in case of deprecation claimed on capital goods

11. Section 16 (9) – Specified Exclusions
Notwithstanding anything contained in sub-section (1), (2), (2A) or (3) (of Section 16) input tax credit shall not be available in respect of the following: (a) motor vehicles, except when they are supplied in the usual course of business or are used for providing the following taxable services- (i) transportation of passengers, or (ii) transportation of goods, or (iii) imparting training on motor driving skills; (b) goods and / or services provided in relation to food and beverages, outdoor catering, beauty treatment, health services, cosmetic and plastic surgery, membership of a club, health and fitness centre, life insurance, health insurance and travel benefits extended to employees on vacation such as leave or home travel concession, when such goods and/or services are used primarily for personal use or consumption of any employee;

12. Section 16 (9) – Specified Exclusions
(c) goods and/or services acquired by the principal in the execution of works contract when such contract results in construction of immovable property, other than plant and machinery; (d) goods acquired by a principal, the property in which is not transferred (whether as goods or in some other form) to any other person, which are used in the construction of immovable property, other than plant and machinery; (77) “principal” means a person on whose behalf an agent carries on the business of supply or receipt of goods and/or services; (e) goods and/or services on which tax has been paid under section 8; and (f) goods and/or services used for private or personal consumption, to the extent they are so consumed. Section 16 (10) Where the registered taxable person has claimed depreciation on the tax component of the cost of capital goods under the provisions of the Income Tax Act, 1961, the input tax credit shall not be allowed on the said tax component.

13. Section 16 (11) – Conditions for taking Credit
Notwithstanding anything contained in this section, but subject to the provisions of section 28, no registered taxable person shall be entitled to the credit of any input tax in respect of any supply of goods and/or services to him unless (a) he is in possession of a tax invoice, debit note, supplementary invoice or such other taxpaying document as may be prescribed, issued by a supplier registered under this Act or the IGST Act; (b) he has received the goods and/or services; (c) the tax charged in respect of such supply has been actually paid to the credit of the appropriate Government, either in cash or through utilization of input tax credit admissible in respect of the said supply; and (d) he has furnished the return under section 27:

14. Section 16 (11) – Conditions for taking Credit
Provided that where the goods against an invoice are received in lots or instalments, the registered taxable person shall be entitled to the credit upon receipt of the last lot or instalment. Explanation.-For the purpose of clause (b), it shall be deemed that the taxable person has received the goods where the goods are delivered by the supplier to a recipient or any other person on the direction of such taxable person, whether acting as an agent or otherwise, before or during movement of goods, either by way of transfer of documents of title to goods or otherwise.

15. Section 16 – Other Conditions for taking Credit
(3A) A taxable person shall not be entitled to take input tax credit under sub-section (2), (2A) or sub-section (3) in respect of any supply of goods and / or services to him after the expiry of one year from the date of issue of tax invoice relating to such supply.
(5) Where the goods and/or services are used by the registered taxable person partly for the purpose of any business and partly for other purposes, the amount of credit shall be restricted to so much of the input tax as is attributable to the purposes of his business.
(6) Where the goods and / or services are used by the registered taxable person partly for effecting taxable supplies and partly for effecting non-taxable supplies, including exempt supplies but excluding zero-rated supplies, the amount of credit shall be restricted to so much of the input tax as is attributable to the taxable supplies including zero-rated supplies.

16. Manner of taking Credit
ITC can be taken in time and manner provided in section 35 of MGL subject to such conditions and restrictions on taking ITC as shall be prescribed under rules.
Section 35(2) of the MGL (similar provision contained in section 7(2) of the IGST Act) provides that the ITC as self-assessed in the return would be credited to the electronic credit ledger of the recipient.
The amount in electronic credit ledger can be used for payment of taxes – in such manner, subject to such conditions and within such time as prescribed

17. Section 35 (4) – Order of using Credit
Output Liability
Input Credit ü
CGST
CGST
SGST
Input tax Credits (‘ITC’)
First utilize CGST
Next utilize IGST ü
IGST

18. Section 35 (4) – Order of using Credit
Input Credit
Output Liability
CGST
SGST ü
SGST
Input tax Credits (‘ITC’)
First utilise SGST
Next utilise IGST ü
IGST 15

19. Section 35 (4) – Order of using Credit
Input Tax Credit
Section 35 (4) – Order of using Credit
Output Liability
Input Credit ü
IGST
IGST ü
CGST
Input tax Credits (‘ITC’)
IGST can be utilized against IGST or CGST or SGST in this order only
IGST is the best credit type ü
SGST

20. Input Service Distributor
Note that in case of inter-state distribution of input service tax credit by an ISD, credit of respective input service on account of SGST or CGST or IGST will be transferred as IGST in all cases. In case of intra-state distribution of input service tax credit by an ISD, SGST and IGST credit shall be distributed as SGST credit; and CGST and IGST credit shall be distributed as CGST credit.

21. Refund of Taxes
If at the end of any tax period, there is unutilised input tax credit in the electronic cash ledger account of an assessee after paying tax, interest, penalty or fee; or in the credit ledger account of the assessee after payment of taxes, he can claim refund of such unutilised balance in the electronic cash or credit ledger. However, he can claim refund of input taxes balance in ‘electronic credit ledger’ only in two situations – (i) in case the aassessee is exporting goods or services; and/or (ii) where the credit has been accumulated because of inverted duty structure, that is, where tax rate on input side is higher than the tax rate on output, due to which credits got accumulated. (Section 38(2), (6))

22. Registration and Credit – Section 16(2)
A person who has applied for registration under the Act within thirty days from the date on which he becomes liable to registration
and has been granted such registration shall,
subject to such conditions and restrictions as may be prescribed,
be entitled to take credit of input tax in respect of inputs held in stock and inputs contained in semi-finished or finished goods held in stock
on the day immediately preceding the date from which he becomes liable to pay tax under the provisions of this Act.

23. Registration and Credit –Section 16(2A)
A person, who takes registration under sub-section (3) of section 19 (Voluntarily Registration),
shall, subject to such conditions and restrictions as may be prescribed,
be entitled to take credit of input tax in respect of inputs held in stock and inputs contained in semi-finished or finished goods held in stock
on the day immediately preceding the date of registration.

24. Registration and Credit – Section 16(3)
Where any registered taxable person ceases to pay tax under section 8 (Composition),
he shall, subject to such conditions and restrictions as may be prescribed,
be entitled to take credit of input tax in respect of inputs held in stock and inputs contained in semi-finished or finished goods held in stock
on the day immediately preceding the date from which he becomes liable to pay tax under section 7.

25. Registration and Credit – Section 27A
(1) Every registered taxable person paying tax under the provisions of section 7 shall furnish the first return containing the details of:
(a) outward supplies under section 25 from the date on which he became liable to registration till the end of the month in which the registration has been granted;
(b) inward supplies under section 26 from the effective date of registration till the end of the month in which the registration has been granted:
The above provisions though related to returns is restricting credit of the person who is applying for registration at the later date from the date when he becomes liable for registration

26. Return and Credit
Section 16(15) : A taxable person shall not be entitled to take input tax credit in respect of any invoice for supply of goods and/or services, after the filing of the return under section 27 for the month of September following the end of financial year to which such invoice pertains or filing of the relevant annual return, whichever is earlier. Section 27(3) : A return furnished under sub-section (1) by a registered taxable person without payment of full tax due as per such return shall not be treated as a valid return for allowing input tax credit in respect of supplies made by such person.

27. Section 16A. - Credit on goods sent to Job Work
(1) The “principal” referred to in section 43 A shall, subject to such conditions and restrictions as may be prescribed, be entitled to take credit of input tax on inputs sent to a job-worker for job-work if the said inputs, after completion of job-work, are received back by him within one hundred and eighty days of their being sent out: Provided that the “principal” shall be entitled to take credit of input tax on inputs even if the inputs are directly sent to a job worker for job-work without their being first brought to his place of business, and in such a case, the period of one hundred and eighty days shall be counted from the date of receipt of the inputs by the job worker.

28. Section 16A. - Credit on goods sent to Job Work
(2) The “principal” shall, subject to such conditions and restrictions as may be prescribed, be entitled to take credit of input tax on capital goods sent to a job- worker for job-work if the said capital goods, after completion of job-work, are received back by him within two years of their being sent out: Provided that the “principal” shall be entitled to take credit of input tax on capital goods even if the capital goods are directly sent to a job worker for job- work without their being first brought to his place of business, and in such a case, the period of two years shall be counted from the date of receipt of the capital goods by the job worker.

29. Section 16A. - Credit on goods sent to Job Work
(3) Where the inputs or capital goods, as the case may be, are not received back by the “principal” within the time specified under sub-section (1) or under sub- section (2), as the case may be, he shall pay an amount equivalent to the input tax credit availed of on the said inputs or capital goods, as the case may be, along with interest specified under sub-section (1) of section 36: Provided that the said “principal” may reclaim the input tax credit and interest paid earlier when the inputs or capital goods, as the case may be, are received back by him at his place of business.

30. Matching, Reversal and Reclaim of Credit
As per the provisions contained in section 16(11) of the MGL, filing of return by the recipient is one of the important conditions for availing the ITC.
Section 28 r/w section 35(2) of the MGL (section 7 (2) of the IGST Act) provides that the ITC, as self-assessed, would be credited to the electronic credit ledger of the recipient on a provisional basis.
Provisions contained in section 29 of the MGL provides that the ITC would be confirmed only if the inward details filed by the recipient are matched with the outward details furnished by the supplier in his valid return.

31. Matching, Reversal and Reclaim of Credit
In case of mismatch between the inward and outward details, the supplier would be required to rectify the mis-match within a period of two months and if the mis-match continues, the ITC would have to be reversed by the recipient.
Proviso to section 28 of the MGL also provides that the recipient can avail the ITC but cannot utilize the same unless he also discharges his self-assessed tax liability.

32. Penal Provisions
Section 16 (16) of the MGL gives power to prescribe manner for recovery of ITC, taken wrongly, from the registered taxable person. Such recovery would have to be made by invoking the provisions contained in section 51 of the MGL. Section 66 (1) (vi) provides that where a taxable person takes and/or utilizes input tax credit without actual receipt of goods and/or services either fully or partially, he shall be liable to a penalty of rupees ten thousand or an amount equivalent to input tax credit availed of, whichever is higher.

33. CA. Rohini Aggarawal rohini@arxadvisors.in
THANKS
CA. Rohini Aggarawal

34. TRANSITIONAL PROVISIONS – CENVAT Credit

35. Section 143: Amount of CENVAT credit carried forward in a return to be allowed as input tax credit
A registered taxable person shall be entitled to take, in his electronic credit ledger, credit of the amount of Cenvat credit carried forward in a return, furnished under the earlier law by him, in respect of the period ending with the day immediately preceding the appointed day in such manner as may be prescribed:
Input tax credit should be admissible in the earlier regime
Also should be admissible in CGST/SGST Act
Excess credit recoverable as arrears of tax revenue if the said amount found recoverable as a result of proceedings instituted before or after appointed day

36. Section 144: Unavailed CENVAT credit on capital goods, not carried forward in a return, to be allowed in certain situations
A registered taxable person shall be entitled to take, in his electronic credit ledger, credit of the unavailed cenvat credit, not carried forward in a return, furnished under the earlier law by him, in respect of the period ending with the day immediately preceding the appointed day in such manner as may be prescribed:
Input tax credit should be admissible in the earlier regime
Also should be admissible in GST
Unavailed Cenvat credit means the amount that remains after subtracting the amount of Cenvat credit already availed
Capital goods means capital goods under CCR 2004
Excess credit recoverable as arrears of tax revenue if proceedings instituted before or after appointed day

37. Section 145: Credit of eligible duties and taxes in respect of inputs held in stock to be allowed in certain situations
The registered taxable person, who was not liable to be registered or engaged in the manufacture of exempted goods under the earlier law, but which are liable to tax under this Act, shall be entitled to take, credit of eligible duties and taxes, in respect of inputs held in stock and inputs contained in semi-finished or finished goods held in stock on the appointed day subject to the following conditions:
Such inputs/goods are used/intended to be used for making taxable supply
Eligible for credit under the earlier law but for his not being liable for registration or the goods remaining exempt under earlier law
Eligible for input tax credit in the GST law
In possession of the invoices or other prescribed documents not older than 12 months preceding the appointed day
Amount of credit to be computed as per GAAP
Excess credit recoverable as arrears of tax revenue if recoverable

38. Section 146: Credit of eligible duties and taxes on inputs held in stock to be allowed to a taxable person switching over from composition scheme
A registered taxable person, who was either paying tax at a fixed rate or paying a fixed amount in lieu of tax payable under the earlier law (“composition taxpayer”), shall be entitled to take, in his electronic credit ledger, credit of eligible duties and taxes in respect of inputs held in stock and inputs contained in semi-finished or finished goods held in stock on the appointed day subject to following conditions :
Such input/goods are used/intend to use for making taxable supply
Such tax payer not paying tax under section 8 – composition under GST
Eligible for credit under the earlier law but for his being composition taxpayer
Eligible for input tax credit in the GST law
In possession of the invoices or other prescribed documents not older than 12 months
Amount of credit to be computed as per GAAP
Excess credit recoverable as arrears of tax revenue

39. Eligible Duties and Taxes under Section 145 & 146
CGST
Excise duty specified in First Schedule to CETA, 1985
Excise duty specified in Second Schedule to CETA, 1985
Additional duty of excise leviable under Section 3 of Additional Duties of Excise (Textile and Textile Articles) Act, 1978
Additional duty of excise leviable under Section 3 of Additional Duties of Excise (Goods of Special Importance) Act, 1957
NCCD
Additional duty leviable under Section 3(1) of Customs Tariff Act, 1975 – CVD
Additional duty leviable under Section 3(5) of Customs Tariff Act, 1975 – SAD
Service Tax leviable under section 66B of the Finance Act, 1994
SGST
Value Added Tax

40. Section 147: Amount payable in the event of a taxable person switching over to composition scheme
Where a taxable person who has carried forward the amount of eligible credit in a return, furnished under the earlier law, in respect of the period ending with the day immediately preceding the appointed day, switches over to the composition scheme in GST regime, he shall pay an amount, by way of debit in the electronic credit ledger or electronic cash ledger, equivalent to the credit of input tax in respect of inputs held in stock and inputs contained in semi-finished or finished goods held in stock on the day immediately preceding the date of such switch over:
After payment of such amount, any balance of input tax credit shall be lapsed

41. Section 162: Credit distribution of service tax by ISD
Notwithstanding anything to the contrary contained in this Act,
the input tax credit on account of services
received prior to the appointed day by an ISD
Shall be eligible for distribution as credit under this Act
Even if invoices relating to such services
received on or after the appointed day
Date of receipt of services important

42. Section 162A: Tax paid on goods lying with agents to be allowed as credit-SGST Law
Goods of Principal lying at the premises of the agent on the appointed day
The agent shall be entitled to take credit-
Agent is registered
Such stock is declared by the principal and agent in the form and manner within such time as may be prescribed
Invoices relating to such goods not earlier than 12 months from appointed day
The principal has not availed input tax credit or reversed the tax credit

43. Section 162B: Tax paid on capital goods lying with agents to be allowed as credit-SGST Law
Capital goods of Principal lying at the premises of the agent on the appointed day
The agent shall be entitled to take credit of tax paid on such capital goods subject to the conditions :
Agent is registered
Such stock is declared by the principal and agent in the form and manner within such time as may be prescribed
Invoices relating to such goods not earlier than 12 months from appointed day
The principal has not availed input tax credit or reversed the tax credit to the extent availed by him

44. Section 162C: Treatment of branch transfers- Only in SGST Law
Notwithstanding anything to the contrary contained in this Act,
Any amount of input tax credit reversed prior to the appointed day
Shall not be eligible as credit of input tax
Under this Act

45. Section 154: Pending refund claims to be disposed of under earlier law
Every claim of refund of any duty/tax/interest/any other amount filed before the appointed day
Shall be disposed off in accordance with the provisions of earlier law
Refund claim accepted shall be paid in cash
Partially/ completely rejected refund claim shall be lapsed ??

46. Section 155: Claim of CENVAT credit to be disposed of under the earlier law
Every proceeding of appeal, revision, review or reference relating to a claim of CENVAT credit under the earlier law
Shall be disposed of in accordance with the provisions of earlier law, and any amount of credit found to be admissible shall be refunded in cash, notwithstanding anything to the contrary contained under the earlier law other than Section 11B(2) of Central Excise Act, 1944
Shall be disposed of in accordance with the provisions of earlier law, and if any amount of credit becomes recoverable as a result of such appeals etc. the same shall be recovered as an arrears of tax revenue under this Act and the amount so recovered shall not be admissible as input tax credit

47. Section 156: Finalization of proceedings relating to output duty liability
Every proceeding of appeal, revision, review or reference relating to any output duty liability initiated before the appointed day, shall be disposed of in accordance with the provisions of earlier law,
if any amount becomes recoverable as a result of such appeal etc. , revision, review or reference, the same shall be recovered as an arrear of tax under this Act and amount so recovered shall not be admissible as input tax credit under this Act.
if any amount found to be admissible shall be refunded in cash, notwithstanding anything contained under the provision of earlier law other than provisions of 11B(2).

48. Section 157: Treatment of the amount recovered or refunded in pursuance of assessment or adjudication proceedings
Where in pursuance of an assessment or adjudication instituted, whether before or after the appointed day, under the earlier law any amount of tax, interest, fine or penalty becomes
recoverable as an arrear of tax under this Act and the amount so recovered shall not be eligible for input tax credit
refundable to the taxable person, the same shall be refunded to him in cash under the earlier law, notwithstanding anything contrary in the said law other than Section 11B(2) of Central Excise Act 1944.

49. Section 158: Treatment of the amount recovered or refunded pursuant to revision of returns
Where any return, furnished under the earlier law, is revised and if, pursuant to such revision,
Any amount is found to be recoverable from the taxable person, the same shall be recovered as an arrear of tax under this Act and the amount so recovered shall not be admissible as input tax credit under this Act.
Any amount found to be refundable to any taxable person, the same shall be refunded to him in cash under the earlier law, notwithstanding anything to the contrary contained in the said law other than the provisions of Section 11B(2) of the Central Excise Act, 1944.

50. CA. Rohini Aggarawal rohini@arxadvisors.in
THANKS
CA. Rohini Aggarawal