9911796707
TMI Blog2021 (6) TMI 826X X X X Extracts X X X X X X X X Extracts X X X X ..... 4,275/-(IGST Rs. 428/-, CGST Rs. 1,932/- and SGST Rs. 1,915/-) payable on delayed payment of GST for the period July- 2017 to Nov- 2017 which appeared to be recoverable from them under Section 50 of the Goods and Service Tax Act, 2017 (GGST Act, 2017 in short) and Rajasthan Goods & Service Tax Act, 2017 (RGST Act 2017 in short) and Section 20 of the IGST Act, 2017; and (ii) have not paid/ short paid Goods and Service Tax (GST in short) amounting to Rs. 91,20,399/- (IGST Rs. 45,75,623/-+ CGST Rs. 22,72,388/- + SGST Rs. 22,72,388/-) during the period Dec- 2017 to March- 2019 by contravening the provisions of Sections 37, 39, 49, 50 & 59 of the Goods and Service Tax Act, 2017 and Rajasthan Goods & Service Tax Act.2017 read with Rule 59 and 61 of the Goods and Service Tax Rules, 2017 (CGST Rules, 2017 in short) and Section 20 of IGST Act,2017. The GST so evaded and not paid by them appeared to be recoverable from them in terms of Section 74 read with Section 76 the Goods and Service Tax Act, 2017 and Rajasthan Goods & Service Tax Act, 2017 as per facts mentioned below 2.2 Based on an intelligence, an investigation was initiated and the business premise of the appellant was searched on ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . due date for filing of GSTR-3B return of the respective month and informed that he will deposit the interest payable on late payment of GST for the respective months. * He further informed that they will file all the pending GST returns for the period Aug- 2018 to Mar-2019 very soon and will also deposit the GST payable along with interest and penalty for the said period. * The Taxable value of taxable supplies made during the period July- 2017 to Mar- 2018 is Rs. 2,38,60,384/- as per their Invoices issued and Rs. 2,39,77,711/- as per GSTR- 3B filed for the aforesaid period. In this regard, he assured to inform the reason of difference thereof, very soon. * The total GST liability for the period July- 2017 to March- 2018 is IGST Rs. 19,83,435/-, CGST Rs. 11,51,406/- and SGST Rs. 1,151,406/- as per Invoices/sales ledger and has deposited IGST Rs. 19,83,435/-, CGST Rs. 11,61,298/- and SGST Rs. 11,61,298/- in their GSTR- 3B filed for the respective periods. Further informed that they will amend the same in the Annual return to be filed for the period 2017-18 (GST period). * The total GST liability for the period April- 2018 to March- 2019 is IGST Rs. 26,61,189/-, CGST Rs. 14 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... through available invoices and other documents it has been observed that the appellant has been charging and collecting GST from their clients, but they had not deposited that GST so collected in govt. exchequer within the stipulated time period. It therefore, appears that the notice intentionally and wilfully suppressed the fact of charging and collecting the GST from their clients and deliberately avoided depositing the GST and furnishing of the GST returns within the stipulated time period with a clear and wilful intention to evade payment of GST. In the era of self-assessment as stipulated under the provisions of GST, responsibilities to make correct classification of supply, determine the GST payable, pay GST and follow the provisions of the Act and Rules framed thereunder lie with the appellant, which they have completely failed to fulfil. As per Section 122(1) (iii) of the CGST Act, 2017, where a taxable person who collects any amount as tax but fails to pay the same to the Govt. beyond a period of three month from the date on which such payment becomes due, he shall be liable to penalty under these provisions. It appeared that there has been a deliberate act by the appella ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d any interest on late payment of GST as payable under Section 50 of CGST Act, 2017. (vii) The Taxable value of taxable supplies made during the period July-2017 to Mar- 2018 is Rs. 2,38,60,384/- as per their Invoices issued and Rs. 2,39,77,711/- as per GSTR- 3B filed for the aforesaid period. The appellant had assured to furnish the reasons of such difference in the value of clearance, but the appellant has failed to furnish any reason till date. Since the appellant has not furnished any reason for difference thereof, the department has no option other than to consider higher taxable value i.e. the value of supply shown in the GSTR- 3B filed by them, for computation of GST payable the period 2017-18 (July-17 to Mar- 18). (viii) The appellant appeared liable to pay IGST Rs. 45,75,623/- + CGST Rs. 22,72,388/- + SGST Rs. 22,72,388/- for the period Dec-2017 to March- 2019; against which the appellant has deposited IGST Rs. 36,83,299-, CGST Rs. 11,23,195/- and SGST Rs. 11,23,195/- only till date. The amount of IGST Rs. 36,83,299/-, CGST Rs. 11,23,195/- and SGST Rs. 11,23,195/(Cash + ITC), so deposited/debited by the appellant appeared liable to be appropriated against the demand ra ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... since the appellant appeared to have contravened the provisions of the Act & Rules referred above with intention to evade service tax, they also appeared to be liable to penalty under Section 122 of the Act. 3. Accordingly, M/s Sinex Vision, Plot No.113,Adinath Nagar, G-1, Krishna Villa, Sirsi Road, Jaipur, were called upon to show cause as to why: (i) The GST amounting to Rs. 91,20,399/- (IGST Rs. 45,75,623/- + CGST Rs. 22,72,388/- + SGST Rs. 22,72,388/-) should not be demanded and recovered from them under proviso to Section 74 read with Section 76 of Goods and Service Tax Act, 2017 and Rajasthan Goods & Service Tax Act, 2017 and Section 20 of IGST Act,2017 and the amount of IGST Rs. 36,83,299/-, CGST Rs. 11,23,195/- and SGST Rs. 11,23,195/- so deposited by the appellant should not be appropriated against the total demand of Rs. 91,20,399/- (IGST Rs. 45,75,623/- + CGST Rs. 22,72,388/- + SGST Rs. 22,72,388/-) for the period under demand. (ii) (a) Interest at the applicable rates should not be recovered from them under Section 50 Goods and Service Tax Act, 2017 and Rajasthan Goods & Service Tax Act. 2017 and Section 20 of IGST Act, 2017;and (b) In addition to the above inte ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 7, if the tax. amount of Rs. 91,20,399/- and interest thereon is paid within a period of thirty days of the date of receipt of this order, the penalty payable shall be fifty percent (50%) of the amount of tax, subject to the condition that the amount of such reduced penalty is also paid within the said period of thirty days: 5. Being aggrieved with the impugned order dated 30.06.2020, the appellant has filed appeal on the following grounds which are summarized as under: At the outset, the appellant deny all the allegations contained in the impugned order as incorrect, unsustainable, illegal and arbitrary on the following grounds, which are independent and without prejudice to one another:- 1. That the impugned order has been passed without considering the submissions made by the appellant and thus deserves to be set-aside on this ground alone. 2. Demand for the period Aug-18 to Mar-19 has been calculated without considering the ITC' That the demand for the period Aug-18 to Mar-19 amounting to Rs. 31,90,710/- (Rs. 8,92,324/- of IGST, Rs. 1149193/- of CGST and Rs. 1149193/- SGST) has been confirmed on the basis of invoices raised by the appellant during the said period wi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h limited means of finances and is mainly dependent on its realization from customers to meet the working capital requirement. The liquidity position of the appellant has worsened with passage of time as it is waiting for realizing the amount from its customers and is committed to deposit the same as soon as payment is received from them. The net liability which is required to be paid after adjustment of ITC available for the said period would be Rs. 16,71,210/- as against the demand of Rs. 31,90,710/- incorrectly stated in the show cause notice as well as impugned order. 4. That the Ld. Adjudicating authority had wrongly relied upon the decision of Megha Engineering and Infrastructure Ltd. wherein it was held that until return is filed no credit would be available in electronic credit ledger and thus there would not be any entitlement of credit. The appellant submits that the said judgement was on the issue as to whether in case of filing of return beyond due date interest is to be calculated on the gross amount of liability without setting-off the amount of input tax credit or on the net tax liability. The Madras High Court in case M/s Refex Industries Limited & Others VS Asst. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or the period Dec-17 to July-18 amounting to Rs. 59,29,689/- (IGST of Rs. 36,83,299/CGST of Rs. 11,23,195/- and SGST of Rs. 11,23,195/-) which has been ordered to be appropriated to the government account. Such amount deserves to be excluded from the amount of penalty alongwith the amount of ITC for the period Aug-18 to Mar-19. That the appellant is committed to deposit GST as soon as it receives payment from its customers. The appellant is making all the efforts day in and out for realising payment from its customers by making regular correspondence and visits to their offices. The appellant is facing severe liquidity crunch and if not given some more time to discharge its liabilities then it would put an end to its business operations. The appellant has cited following case laws in their defence: The appellant submit that the Hon 'ble Supreme Court has held in the case of Continental Foundation Jt. Venture Is CCE, Chandigarh-I [2007(2I6) ELT-177-SC] The appellant also rely on the Supreme Court's judgment in the case of Collector Vs. Champhar Drugs {1989 (40) ELT-276-SC] ANAND NISHIKAWA CO. LTD. VS CCE [2005 (188) E.L.T. 149 (S.C.)] UNIWORTHTEXTILES LTD. VS CCE [20 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as may be prescribed. (2) The input tax credit as self-assessed in the return of a registered person shall be credited to his electronic credit ledger, in accordance with section 41, to be maintained in such manner as may be prescribed. (3) The amount available in the electronic cash ledger may be used for making any payment towards tax, interest, penalty, fees or any other amount payable under the provisions of this Act or the rules made thereunder in such manner and subject to such conditions and within such time as may be prescribed. (4) The amount available in the electronic credit ledger may be used for making any payment towards output tax under this Act or under the Integrated Goods and Services Tax Act in such manner and subject to such conditions and within such time as may be prescribed. (5) The amount of input tax credit available in the electronic credit ledger of the registered person on account of- (a) integrated tax shall first be utilised towards payment of integrated tax and the amount remaining, if any, may be utilised towards the payment of central tax and State tax, or as the case may be, union territory tax, in that order; (b) the central tax shall fir ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the provisions of this Act or the rules made thereunder, but fails to pay the tax or any part thereof to the Government within the period prescribed, shall for the period for which the tax or any part thereof remains unpaid, pay, on his own, interest at such rate, not exceeding eighteen per cent., as may be notified by the Government on the recommendations of the Council. (2) The interest under sub-section (1) shall be calculated, in such manner as may be prescribed, from the day succeeding the day on which such tax was due to be paid. Section 59 of CGST Act, 2017 stipulates that- Every registered person shall self-assess the taxes payable under this Act And furnish a return for each tax period as specified under section 39. SECTION 122. Penalty for certain offences. - (1) Where a taxable person who - (i)....... (ii)..... (2) Any registered person who supplies any goods or services or both on which any tax has not been paid or short-paid or erroneously refunded, or where the input tax credit has been wrongly availed or utilised, - (a) for any reason, other than the reason of fraud or any willful misstatement or suppression of facts to evade tax, shall be liable to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (IGST is Rs. 2,43,632/-, CGST is Rs. 6,37,934/- and SGST is Rs. 6,37,934/-). Further, he submitted that after setting off the input credit from the output tax liability the net demand of GST payable is Rs. 16,71,210/- as against the demand of Rs. 31,90,710/- . In the support of his contention the appellant has submitted the copy of voucher register in which details of Suppliers, GSTN No. Invoices No. Date of Invoices, Taxable value and amount of GST (IGST, CGST, SGST +Cess ) etc., have been mentioned (as Annexure-'D' of submissions). To examine the veracity of appellant in this context, it would be appropriate to look into the statutory provisions available in the GST Law. The relevant legal provisions of GST law wherein eligibility and conditions for taking input tax credit has been provided are as under:- Sub section (2) of Section 16 of CGST Act (2) Notwithstanding anything contained in this section, no registered person shall be entitled to the credit of any input tax in respect of any supply of goods or services or both to him unless- ..... ..... (d) he has furnished the return under Section 39: In view of the above said provisions I find that no registered pers ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... time but he did not do so. Hence he has violated the provisions of GST Act and rules made thereunder. In view of the above legal provisions I am not agree with the assessee contention that he did not deposit his tax liability due to non payment received from his customers. Further, appellant submitted that the contention of department that he has collected the tax for period Dec-2017 to March-2019 from its customers but not deposited the same and thus evaded the tax is incorrect and untenable. He also contended that he has filed the returns for the period Dec-2017 to July-2018 and discharged his tax liability for the said period moreover, he also filed GSTR-1 for subsequent period August-2018 to March-2019 but could not filed GSTR 3B due to liquidity crunch. Hence he submits that once the liability has been shown in the returns filed allegation of tax evasion can not be levelled against him. In respect of the above contention, on going through the records I find that the appellant has filed its returns and discharged his tax liability for the period Dec-2017 to July-2018 only after initiation of investigation. Further, I find that the assessee/appellant was defaulted to file th ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
