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TMI Blog2022 (9) TMI 1621X X X X Extracts X X X X X X X X Extracts X X X X ..... led, under Article 226 of the Constitution of India, seeking the following relief: "to issue Writ, Order or Direction more particularly in the nature of Writ of Mandamus declaring the proceeding of the 3rd Respondent in Assessment Order OC No. 80/2019, dated 05.02.2019, in Form GSTR-ASMT-13 insofar as imposing penalty of Rs. 1,37,31,305/- is illegal, arbitrary and contrary to the provisions of the Central Goods and Services Tax Act, 2017, and the Andhra Pradesh State Goods and Services Tax Act, 2017, and violative of Article 14 and 265 of the Constitution of India and set-aside the same and to pass such order ...." 3. The Petitioner is manufacturer of Lateral Pipes & Drippers registered under the Central Goods and Services Tax Act, 2017 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 04.02.2020. The averments in the affidavit also shows that, to impose penalty under Section 122 of CGST Act, the procedure under Sections 73 or 74 is required to be followed, for which a show cause notice has to be issued. Having regard to the above circumstances and since the entire proceedings are contrary to the provisions established by law, the learned Counsel for the Petitioner seeks setting aside of the order impugned herein. 6. (i) A counter came to be filed by the Commissioner of Central GST, Tirupati, disputing the averments made in the affidavit filed in support of the Writ Petition. It is submitted that the assessee has failed to pay the GST liabilities and also failed to pay monthly returns within the prescribed due dates. It ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... recovery of the amounts and, hence, notices are issued. (iii) It is categorically stated that, the Petitioner Company is resorting to filing of GSTR-I returns for certain period and not filing GSTR-3B returns, thereby not depositing the statutory taxes collected from their customers. It is further averred that, the issue, namely, that the Petitioner has not received GSTR-3A returns, is an afterthought raised after lapse of two years. According to him, though the Department has issued GSTR ASMT-13 Order, but the Petitioner kept quiet without challenging the same. (iv) Coming to the issue relating to imposition of penalty, it is submitted that, there is no bar under Section 62 of the CGST Act, from imposition of penalty for contraventions m ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er that since the impugned order has not yet been uploaded electronically, the Petitioner is deprived from availing statutory remedy of appeal in terms of Section 107 of the Act. What was uploaded was only a summary of the Order, which does not indicate any details as to the provisions and other attendant reasons. 8. Reiterating the stand taken in the affidavit filed in support of the writ petition, Sri. M.V.J.K. Kumar, learned Counsel for the Petitioner, mainly submits that, the assessment order passed by the authority is in violation of Section 62 of GST Act. In other words, his main argument appears to be that, 15 days time which is required to be given for filing the returns was not given. According to him, a notice was alleged to have ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Section 73 and 74 is required to be followed. 11. Section 122 of CGST Act, which deals with "Penalty for certain offences":- states that, "wherever there is a violation, a taxable person 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". 12. In order to impose penalty in terms of Section 122(2)(a) of the Act, the demand for recovery should be made following the pro ..... X X X X Extracts X X X X X X X X Extracts X X X X
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