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TMI Blog2022 (5) TMI 1074X X X X Extracts X X X X X X X X Extracts X X X X ..... APGST Act, 2017 - the penalties have been imposed creating additional liability on the petitioner, which was not reflected in the earlier notice dated 13.08.2020. No opportunity of hearing was given to the petitioner while imposing the said penalty. Section 62 of the Act does not anywhere speaks about imposing penalty. It only speaks about liability for payment of interest subsection (1) of Section 50 or for payment of late fee under Section 47 of the Act. Further, if the penalty is to be imposed in cases, which are not covered under Section 62 or Section 63 or Section 64 or Section 73 or Section 74 or Section 129 or Section 130, the authority can impose penalty after giving reasonable opportunity of hearing such person - under Section 161 of the Act any rectification, which adversely affects any person is possible only after following the principles of natural justice. Since the order impugned substantially affects the assessee as penalty is sought to be imposed, which demand did not form part of notice dated 13.08.2020, without giving an opportunity of hearing, the orders under challenge are set aside. However, the respondents are permitted to proceed further by issuing a fres ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... T and Rs.1,39,39,656/- each towards CGST and APGST apart from a sum of Rs.3,36,798/- as cess payable by the petitioner for the tax period January, 2020 to June, 2020. The petitioner was also directed to pay amounts towards interest for belated submission of the returns. It is to be noted here that an order came to be passed in exercise of power conferred under Section 62 of the CGST Act, 2017, which provides a procedure for framing assessments on non filers of returns. On 27.08.2020, the very same authority, in exercise of its power under Rule 100(1) of CGST and SGST Rules, 2017 r/w Section 62(1) of the two GST Acts enlarged the order with certain additional liabilities by styling the said order as Corrigendum-cum-Addendum. This Corrigendum-cum-Addendum was directed to be inserted as para No.4.8 after para No.4.7 and consequently, directed the petitioner herein to pay penalty of Rs.18,51,772/- under IGST, Rs.13,93,966/- each under CGST and APGST Acts apart from cess. This communication dated 27.08.2020 determining the penalty payable came to be made for the first time in terms of Section 122(2)(a) of CGST Act. Thereafter, the very same authority namely, the 3rd respondent herein is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ction 45, even after the service of a notice under section 46, the proper officer may proceed to assess the tax liability of the said person to the best of his judgment taking into account all the relevant material which is available or which he has gathered and issue an assessment order within a period of five years from the date specified under section 44 for furnishing of the annual return for the financial year to which the tax not paid relates. (2) Where the registered person furnishes a valid return within thirty days of the service of the assessment order under sub-section (1), the said assessment order shall be deemed to have been withdrawn but the liability for payment of interest under sub-section (1) of section 50 or for payment of late fee under section 47 shall continue 8. Section 122 of the Act deals with penalty for certain offences. It would be necessary for us to extract the same, which is as under: (1) Where a taxable person who (i) supplies any goods or services or both without issue of any invoice or issues an incorrect or false invoice with regard to any such supply; (ii) issues any invoice or bill without supply of goods or services ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ance with the provisions of this Act or the rules made thereunder or furnishes false information or documents during any proceedings under this Act; (xviii) supplies, transports or stores any goods which he has reasons to believe are liable to confiscation under this Act; (xix) issues any invoice or document by using the registration number of another registered person; (xx) tampers with, or destroys any material evidence or document; (xxi) disposes off or tampers with any goods that have been detained, seized, or attached under this Act, he shall be liable to pay a penalty of ten thousand rupees or an amount equivalent to the tax evaded or the tax not deducted under section 51 or short deducted or deducted but not paid to the Government or tax not collected under section 52 or short collected or collected but not paid to the Government or input tax credit availed of or passed on or distributed irregularly, or the refund claimed fraudulently, whichever is higher. (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 availe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... motion or where such error is brought to its notice by any officer appointed under this Act or an officer appointed under the State Goods and Services Tax Act or an officer appointed under the Union Territory Goods and Services Tax Act or by the affected person within a period of three months from the date of issue of such decision or order or notice or certificate or any other document, as the case may be: Provided that no such rectification shall be done after a period of six months from the date of issue of such decision or order or notice or certificate or any other document: Provided further that the said period of six months shall not apply in such cases where the rectification is purely in the nature of correction of a clerical or arithmetical error, arising from any accidental slip or omission: Provided also that where such rectification adversely affects any person, the principles of natural justice shall be followed by the authority carrying out such rectification. 11. A very reading of 161 of the Act makes it very clear that where any rectification adversely affects any person, principles of natural justice shall be followed by the authority carrying ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n who has not paid tax shall be liable to a penalty of ten thousand rupees or ten percent of the tax due from such person, whichever is higher. 3. In the order dated 13.8.2020, after para 7(iii), para 7(iv) is inserted and may be read as 7.(iv) M/s SPYAIL are also ordered to pay penalty of Rs. Rs.18,51,772/- under IGST, Rs.13,93,966/-towards CGST Rs.13,93,966/- towards SG/UT GST and Rs.3,36,800/- towards Cess for tax periods January 2020 to june 2020 (detailed in Annexure) as required under Section 122(2)(a) of the CGSTA/APGSTA. 17. A reading of the above would clearly indicate that penalties have been imposed creating additional liability on the petitioner, which was not reflected in the earlier notice dated 13.08.2020. No opportunity of hearing was given to the petitioner while imposing the said penalty. 18. As stated earlier Section 62 of the Act does not anywhere speaks about imposing penalty. It only speaks about liability for payment of interest subsection (1) of Section 50 or for payment of late fee under Section 47 of the Act. Further, if the penalty is to be imposed in cases, which are not covered under Section 62 or Section 63 or Section 64 or Section ..... X X X X Extracts X X X X X X X X Extracts X X X X
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