2023 (8) TMI 974

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....aggrieved with the interest and penalty imposed on the assessee for excess claim of input tax credit, which stood paid subsequent to a notice issued under the BGST Act. The order imposing penalty is produced as Annexure-4 and an appeal filed, with delay, stood rejected on account of the delay being in excess of that which is permitted condonation under Section 107(4) of the BGST Act. 2. Learned counsel for the petitioner at the outset submits that there is a further remedy available before the Tribunal, which has not been constituted under Section 109 of the BGST Act. It is also pointed out that in many cases, this Court grants a stay of recovery on payment of 20% of the balance tax due, till the Tribunal is constituted and an appeal is ....

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....rther appeal to the Tribunal, when even this Court would not be entitled to condone the delay beyond the period specifically provided under the enactment. The petitioner despite a notice for remitting the interest due, having not remitted it, was liable to penalty, which cannot be absolved as per the statutory provisions. 4. The petitioner had filed the returns for the assessment year 2017-18 and on scrutiny under Section 61 of the BGST Act, three discrepancies were noticed. ITC claim under GSTR-1 was found to be in excess of that under GSTR- 2A/2B to the extent of Rs. 4,62,542/-. The turn-over, as indicated in GSTR-9C and RT-1 GTO, also were at variance. The Assessing Authority also pointed out that the tax has been paid mainly by I.T.C....

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....itioner herein. The Hon'ble Supreme Court also declared that if a longer period than 90 days is provided in a Statute, then that longer period will apply. In the BGST Act, u/s 107(4) there is a provision for condonation of delay, if the appeal is filed delayed, within one month of expiry of limitation. Even if that be deemed to be applicable then the appeal ought to have been filed by 28.06.2022. 8. The appeal is filed only on 31.01.2023 after seven months from the date on which even the limitation period as stipulated by the Hon'ble Supreme Court, expired. 9. In so far as the second appeal, as rightly pointed out by the Government Advocate, no appeal is maintainable from the order passed in the first appeal since it was dismissed on ....

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.... the High Court. On the particular facts, the Hon'ble Supreme Court set aside the penalty imposed on the assessee under the Income Tax Act. 12. In the present case, it is seen that the assessee has defaulted tax payment, based on an excessive claim of input tax credit, later deposited the input tax credit without interest due under Section 50; which attracted the penalty under Section 122. We have already found that there can be no coercion found insofar as the deposit is concerned. The assessee, hence, has admitted the discrepancy with respect to excess claim of input tax credit and paid the amounts due on which interest was also due under Section 50 of the BGST Act. The non-payment of tax due and the failure to pay interest attracted t....