Section 16(2)(aa) read with Rule 36(4) mandates that the ITC can be claimed only on the basis of GSTR-2B.
However, this prerequisite has been challenged before Guwahati High Court in the case of Mcleod Russel India Limited vs Union of India.
A similar condition for claiming input VAT under Delhi VAT was held unconstitutional by Delhi High Court and the Supreme Court in the case of Arise India Limited. The condition was stuck down on the ground that the statute does not create a rational distinction between bona-fide purchasing dealers vis-à-vis fraudulent dealers, which rendered the provision invalid under Article 14 of the Constitution of India.
Several other High Courts on similar lines have either struck down similar provisions under their jurisdictional VAT laws denying ITC on mis-matched credit or have applied doctrine of reading down in favour of bonafide taxpayers where constitutional validity was concerned.
The Courts under the erstwhile laws have consistently held that a purchaser who acted in a bona-fide manner cannot be penalised for default made by its supplier. Section 16(2)(aa) also fails to distinguish bona-fide buyers with fraudulent buyers.
Be that is at may, can GSTN through its advisory supersede the legal provisions?
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