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GST ITC on Purchases Where Supplier Has Not Paid GST

A comprehensive guide on GST ITC where the supplier has not paid GST, including the Supreme Court's decision upholding Section 16(2)(c) and the protection for bona fide purchasers.

15 Sept 20263 min read

Introduction

The supplier collected GST from you. You paid the tax-inclusive consideration. But the supplier did not remit the GST to the government. The question arises: Can the department deny your ITC?

The answer is nuanced. Section 16(2)(c) makes ITC conditional on the supplier's payment of tax to the government. However, courts have protected bona fide purchasers. This guide explains the legal framework and the judicial precedents.

Legal Framework: Section 16(2)(c) of the CGST Act, 2017

ITC Condition: Payment of Tax to Government

Section 16(2)(c) provides that ITC can be claimed only if the tax charged by the supplier has been paid to the government. This provision protects the exchequer by linking ITC to actual payment of tax.

The Tension

The provision creates a tension: while it protects the exchequer, it exposes the recipient's credit to a default occurring at the supplier's end. A buyer who has paid the tax-inclusive consideration may lose ITC because of the supplier's default.

The Supreme Court's Position

Gujarat High Court

The Gujarat High Court declined to read down Section 16(2)(c), declaring it ultra vires. The court advised the government to implement a tracking mechanism to protect buyers.

Supreme Court

The Supreme Court upheld the Gujarat High Court's judgment sustaining the constitutional validity of Section 16(2)(c). However, the court also stayed a Tripura High Court ruling that allowed ITC to a buyer despite the supplier's failure to deposit GST.

The Bona Fide Purchaser Exception

Where the transaction is genuine and the buyer has acted in good faith, courts have protected the ITC claim. The Supreme Court in Safecon Lifescience dismissed the Revenue's SLP, affirming that ITC cannot be denied to a bona fide purchaser where the genuineness of the transaction is established.

Documentation Required to Establish Genuineness

  • Tax Invoice: Valid tax invoice from the supplier.
  • E-Way Bill: E-way bill for the movement of goods.
  • Transport Documents: Bilty or transport receipts.
  • Bank Payment Proof: Payment through banking channels.
  • GST Returns: Supplier's GSTR-1 and GSTR-3B for the relevant period.

Best Practices

  • Conduct Due Diligence: Verify the supplier's compliance history.
  • Maintain Documentation: Maintain all documents supporting the genuineness of the transaction.
  • Monitor Supplier Compliance: Track the supplier's filing and payment status.
  • Respond to Notices: Respond promptly to any notices from the department.
  • Seek Professional Assistance: Where the supplier has defaulted, seek professional guidance.

Conclusion

ITC where the supplier has not paid GST is a contested area. Section 16(2)(c) conditions ITC on the supplier's payment of tax. However, courts have protected bona fide purchasers where the transaction is genuine. Proper documentation is essential to defend ITC claims.


Facing ITC denial due to supplier default? Anuj Desai & Associates provides expert guidance on defending ITC claims. Contact us today.

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