9911796707
TMI Blog2022 (9) TMI 1621X X X X Extracts X X X X X X X X Extracts X X X X ..... w that, a notice in Form GSTR-3A came to be issued on 04.02.2019 and the same is served immediately without waiting for statutory period of 15 days, as contemplated under Section 46. An Assessment Order came to be passed under Section 62 on the very next day i.e., 05.02.2019 directing payment of tax, interest and penalty. Issue identical to the case on hand came up for consideration in M/S. S.P.Y. AGRO INDUSTRIES LIMITED., VERSUS UNION OF INDIA, CENTRAL BOARD OF INDIRECT TAXES AND CUSTOMS, THE COMMISSIONER OF CUSTOMS AND CENTRAL TAX TIRUPATI GST, THE ASST. COMMISSIONER OF CENTRAL TAX, THE SUPERINTENDENT OF CENTRAL TAX, M/S MYLAN LABORATORIES LIMITED AND OTHERS [ 2020 (11) TMI 712 - ANDHRA PRADESH HIGH COURT] and PARVATHI REDDY SANNAPU VERSU ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... olative 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, [ CGST ], and discharging liability since 2017. It is said that, the Petitioner company is filing monthly returns in Form GSTR 1 and GSTR 3B. 4. While things stood thus, an Assessment Order came to be issued under Section 62 of the CGST Act in Form GSTR ASMT - 13, dated 05.02.2019, demanding the Petitioner to pay tax with interest and penalty. The details of which are as under: (i) The petitioner is ordered to pay of Rs. 16,05,007/- towards IGST, Rs. 60,63,149/- towards CGST and Rs. 60,63,149/- towards SG/UT GST ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nts 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 is said that, though the Petitioner has filed GSTR-I for certain period, but failed to file GSTR-3B returns for the corresponding period. It is stated that, non-filing of GSTR-3B returns would lead to twin consequences:- first, no revenue would be transferred to the Government and on the other hand, the person to whom the Petitioner has issued invoices must have availed GST credit, though the Petitioner has not paid GST. Therefore, non-filing of GSTR-3B returns within the prescribed period, which were made compulsory on introduction ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 made by the Petitioner. The format of GSTR ASMT-13, prescribed by the Government of India, contains a column for penalty, which is also evident to prove that penalty can be imposed under Section 122 of the CGST Act, while issuing assessment order under Section 62 of the Act. (v) Referring to Article 265 of the Constitution of India, it is urged that, statutorily notified tax liabilities were only imposed on the taxable person due to their failure to adhere to the statutory provisions of the CGST Act and the Rules made there-under. (vi) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 been issued under Section 46 on 04.02.2019 and the Order came to be passed on 05.02.2019 and, as such, the Order is in violation of provisions of Section 62 of the Act. The Counsel further submits that, the notice under Section 46 directing the Petitioner to pay tax, interest and penalty was not served on the Petitioner till date. But, however, after the order has been kept on portal, in the month of August 2020, tax along with interest has been paid. In substance, the argument of the learned Counsel for the Petitioner is with regard to t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... regularly, 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 procedure under Section 73 of CGST Act, in which case, the proper Officer shall issue a notice under Section 73 within three months prior to the time specified in sub-section 10 of section 73. It appears that, from the record that such a notice was not issued prior to passing of impugned order. 13. As per Sections 73 and 74 of CGST Act, a show-cause notice has to be issued and the same has to be adjudicated following due process of law. Though, the learned counsel for the Petitioner pleaded that, no separate notice was issued directing to pay penalt ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
