Page 103 - GSTL_21st May 2020_Vol 36_Part 3

2020 ] MAHADEO CONSTUCTION CO. v. UNION OF INDIA 349
(8) Where any person chargeable with tax under sub-section (1) or sub-
section (3) pays the said tax along with interest payable under section 50
within thirty days of issue of show cause notice, no penalty shall be payable
and all proceedings in respect of the said notice shall be deemed to be con-
cluded.
(9) The proper officer shall, after considering the representation, if any,
made by person chargeable with tax, determine the amount of tax, interest
and a penalty equivalent to ten per cent of tax or ten thousand rupees,
whichever is higher, due from such person and issue and order.
(10) The proper officer shall issue the order under sub-section (9) within
three years from the due date for furnishing of annual return for the finan-
cial year to which the tax not paid or short paid or input tax credit wrongly
availed or utilized relates to or within three years from the date of errone-
ous refund.
(11) Notwithstanding anything contained in sub-section (6) or sub-section
(8), penalty under sub-section (9) shall be payable where any amount of
self-assessed tax or any amount collected as tax has not been paid within a
period of thirty days from the due date of payment of such tax.”
(Emphasis supplied)
16. A bare reading of the provisions of Section 39(1) read with Section
39(7) of the CGST Act would reveal that a dealer is liable to pay tax within 20th
day of the succeeding month for which the dealer was liable to file his monthly
return.
17. Further, Section 50 of the Act contains provisions relating to Levy of
Interest on delayed payment of tax. A reading of sub-section (2) of Section 50
itself would reveal that interest payable under sub-section (1) of Section 50 is re-
quired to be calculated in such manner, as may be prescribed.
18. However, the important issue for consideration in the instant writ
application is the interpretation of the provisions of Section 73 of the Act. A bare
reading of Section 73(1) of the Act reveals that where it appears to the Proper
Officer that “any tax has not been paid or short paid” the Proper Officer shall
serve notice on the person chargeable with tax, “which has not been so paid” or
“which has been short paid” requiring him to show cause as to why he should
not pay the amount specified in the notice along with interest payable thereon
under Section 50 of the Act and a penalty leviable under the provisions of the Act
and Rules. Thus, a bare reading of Section 73(1) would reveal that if tax has not
been paid or has been short paid, a notice is required to be served by the Proper
Officer on the assessee not only requiring him to show cause as to why tax be not
recovered from it, but also specifying in the notice the interest payable under
Section 50 also to be recovered along with penalty. Thus, if there is a short pay-
ment of tax or non-payment of tax, a notice is required to be issued even for re-
covery of interest under Section 50 of the CGST Act.
19. The question would, therefore, arise that if an assessee, who has al-
ready paid tax, but has paid the same after some delay, would fall within the ex-
pression “tax not being paid or short paid”. The aforesaid issue has already been
answered by this Court in the case of Godavari Commodities Ltd. v. Union of India
and Ors., reported in 2019 SCC Online Jhar 1839 = 2020 (33) G.S.T.L. 16 (Jhar.), as
under :-
GST LAW TIMES  21st May 2020  103