When a supplier's GST registration is cancelled with retrospective effect, departments frequently deny the buyer's input tax credit under Section 16(2)(c) for the period concerned. Several High Courts have held that a bona fide buyer who paid tax and holds valid documents should not be penalised for the supplier's later default, but the position is litigation-prone and fact-specific.
The legal trigger: Section 16(2)(c)
Section 16(2)(c) of the CGST Act allows ITC only if the tax charged on the supply has actually been paid to the Government. When a supplier is cancelled retrospectively — often for being non-existent or a 'bill trader' — the department treats the underlying tax as unpaid and seeks to reverse the buyer's credit, with interest and penalty.
The bona fide-buyer line of reasoning
A recurring judicial theme is that a genuine buyer cannot be made to suffer for the supplier's default where the buyer has (a) a valid tax invoice, (b) proof of receipt of goods/services, and (c) proof of payment to the supplier including tax, typically through banking channels. The Calcutta High Court in Suncraft Energy held that the department should first proceed against the defaulting supplier before reversing a bona fide buyer's credit, save in exceptional cases such as collusion. Verify the current status and applicability of any judgment to your facts.
Building a defensible file
- Retain the tax invoice, e-way bill, transport/LR and proof of delivery.
- Keep bank proof of payment to the supplier (within 180 days, per the second proviso to Section 16(2)).
- Save the supplier's GST status and GSTR-1/GSTR-3B filing evidence at the time of the transaction (a periodic GSTIN check protects you).
- Show the supply appeared in your GSTR-2B when claimed.
Practical risk management
Prevention beats litigation. Run a periodic GSTIN verification on key vendors, monitor their filing track record, and consider holding the tax portion of payment until the invoice reflects in 2B for high-risk suppliers. Where a notice is received, respond to the show-cause notice with the documentary trail above rather than conceding the reversal.
Key takeaways
- Section 16(2)(c) makes ITC contingent on the supplier's tax reaching the Government.
- Bona fide buyers with full documents have been protected by several High Courts.
- Keep invoice, delivery proof, banking proof (180-day rule) and GSTR-2B evidence.
- Verify key vendors' GSTIN and filing status periodically.