Page 161 - GSTL_18th June 2020_Vol 37_Part 3

2020 ] IN RE : OMSAI PROFESSIONAL DETECTIVE AND SECURITY SERVICES PVT. LTD. 375
returns of the appellant for the period from January, 2019 to Febru-
ary, 2019.
(2) Regarding levy of penalty of Rs. 3.43.96.432/- :
As already discussed the A.A has not recorded exhaustive reasons,
while determining the tax as well as the penalty and passed
tax/penalty orders through a single order, which is not legitimate.
In this connection, the following case law is relevant and essential to
explore, before analyzing the penalty justifiability aspect.
THE HON’BLE SRI JUSTICE RAMESH RANGANATHAN
AND
THE HON’BLE SMT. JUSTICE KONGARA VIJAYA LAKSHMI
WRIT PETITION NO. 33777 OF 2018
Dated 26-9-2018
ORDER : {Per the Hon’ble Sri Justice Ramesh Ranganathan}
Heard Sri P. Balaji Varma, Learned Counsel for the petitioner and
Sri Shaik Jeelani Basha, Learned Special Standing Counsel for
Commercial Taxes and, with their consent, the Writ Petition is dis-
posed of at the stage of admission.
The proceedings under challenge in this Writ Petition is the order
passed by the second respondent on 20-8-2018, for the tax period
March, 2018, directing the petitioner to pay tax and penal interest
without issuing an assessment order under Section 61 of the An-
dhra Pradesh Goods and Services Tax Act, 2017 (“the APGST Act”
for brevity), and without issuing a show cause notice, as illegal, ar-
bitrary and without jurisdiction. By the order, impugned in the Writ
Petition, dated 20-8-2018 the Assistant Commissioner directed
payment of penalty at 15% along with interest under Section 50
read with Section 79(5) of the APGST Act and Rule 143 of the
APGST Rules, failing which recovery proceedings would be initiat-
ed under Section 79 of the said Act.
While fairly admitting that the petitioner is liable to pay tax and pe-
nal interest, Sri P. Balaji Varma, Learned Counsel for the petitioner,
would, however, question the validity of the assessment order in so
far as the petitioner was called upon to pay penalty at 15%, con-
tending that any proceedings for recovery of penalty must be pre-
ceded by a show cause notice which, admittedly, was not issued in
the present case.
Section 74(5) of the APGST Act stipulates that a person, chargeable
with tax, may, before service of notice under sub-section (1), pay the
amount of tax along with interest payable under Section 50 and a
penalty equivalent to 15% of such tax on the basis of his own ascer-
tainment of such tax or the tax as ascertained by the proper officer,
and inform the proper officer in writing of such payment. Section
74(1) of the APGST Act stipulates that, where it appears to the
proper officer that any tax has not been paid or short paid or erro-
neously refunded or where input tax credit has been wrongly
availed or utilised by 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 or which has been
short paid or to whom refund has erroneously been made, or who
has wrongly availed or utilised input tax credit 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, and a
penalty equivalent to the tax specified in the notice.
GST LAW TIMES  18th June 2020  161