TaxTMI 
TaxTMI 
2020 (11) TMI 712
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.... a writ of Mandamus to declare the proceedings of the 5th Respondent vide Order OC. No. 26/2019, dated 29.01.2019 in Form GSTR-ASMT 13 insofar as imposing penalty of Rs. 4,27,19,192/- against the Petitioner and consequential proceedings vide OC. No. 149/2020, dated 12.08.2020, demanding the Petitioner to pay penalty as being illegal, arbitrary and contrary to the provisions of the Central Goods and Services Tax Act, 2017 ['CGST Act'], and the Andhra Pradesh State Goods and Services Tax Act, 2017 ['AP SGST Act'] and violative of Articles 14 and 21 of the Constitution of India. 2) The facts, in issue, are that: i) The Petitioner herein is a Company and the deponent is the Director of the Company. The said Company is manufacturer of Grain b....
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....Act, AP GST Act, is illegal. It is stated that, 5th Respondent has no power to impose such penalty as per Section 62 of CGST Act. 4) The Counsel further pleads that, to impose penalty under Section 122 of CGST Act, the procedure under Section 73 and 74 is required to be followed. It is further averred that, without giving any opportunity or notice about imposing penalty, passing an order directing the Petitioner to pay Rs. 4,27,19,191/- as penalty is illegal, improper and incorrect. 5) The Counsel further pleads that, 3rd Respondent has issued a Garnishee Order, dated 31.07.2020, to the 6th Respondent and also to 7th and 8th Respondents for Rs. 5,53,54,009/-, which includes, tax, interest and penalty. Apart from issuing another Gar....
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....mounts voluntary. He pleads that, there is no bar on imposition of penalty under Section 122 of CGST Act while issuing assessment order under Section 62 of CGST Act, and there is no room for discussion on Sections 73 and 74 of CGST Act. Having regard to the above, it is pleaded that the Writ Petition is liable to be dismissed. 9) Section 73(1) of CGST Act, reads as under: "(1) Where it appears to the proper officer that any tax has not been paid or short paid or erroneously refunded, or where input tax credit has been wrongly availed or utilised for any reason, other than the reason of fraud or any wilful-misstatement or suppression of facts to evade tax, he shall serve notice on the person chargeable with tax which has not been so paid ....
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....tion 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) It is well settled that, as per the procedure contemplated under Section 73 and 74 of CGST Act, a show-cause notice has to be necessarily issued and same has to be adjudicated followi....