Page 164 - GSTL_18th June 2020_Vol 37_Part 3

378 GST LAW TIMES [ Vol. 37
(xxi) disposes off or tampers with any goods that have been
detained, seized, or attached under this Act, he shall be
liable to pay a penalty of ten thousand rupees or an
amount equivalent to the tax evaded or the tax not de-
ducted under section 51 or short deducted or deducted
but not paid to the Government or tax not collected un-
der 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.
(2) Any registered person who supplies any goods or services or
both on which any tax has not been paid or short-paid or er-
roneously refunded, or where the input tax credit has been
wrongly availed or utilised, -
(a) for any reason, other than the reason of fraud or any wil-
ful misstatement or suppression of facts to evade tax,
shall be liable to a penalty of ten thousand rupees or ten
per cent, of the tax due from such person, whichever is
higher;
(b) for reason of fraud or any wilful misstatement or sup-
pression of facts to evade tax, shall be liable to a penalty
equal to ten thousand rupees or the tax due from such
person, whichever is higher.
The A.A has invoked Section 122, on which he has supposedly re-
lied and treated the appellant non-submission of GSTR-3B as a
means for fraudulent and wilful attempt for suppression of liable
tax and levied 100% penalty. The basic discrepancy in the A.A’s in-
terpretation is that it cannot be said that the appellant has acted de-
liberately to suppress the outward taxable supplies, because the ap-
pellant has filed GSTR-1 returns declaring the actual turnovers,
hence prima facie no ground can be made for wilful suppression at-
tribution. That means, though the A.A has assigned appellant’s ac-
tion with a motive of wilful attempt for suppression of facts, but it is
beyond any doubt and the A.A also admitted that the appellant has
filed GSTR-1 returns declaring the outward taxable supplies, hence
attribution of wilful suppression by the appellant does not hold le-
git. To levy of penalty under Section 122, basically there must be
suppression of facts, but in the instant case the appellant has not at-
tempted for suppression of facts and duly declared his outward
taxable supplies turnovers thorough GSTR-1 returns filed by them.
Though, non-filing of GSTR-3B returns, is certainly an omission on
the part of the appellant, but such non-filing shall not lead to penal-
ty under Section 122, because there is no prima facie suppression by
the appellant regarding his outward taxable supplies.
The additions made by the AA towards the probable suppressions
that formed the basis for the levy of penalty should also fall to the
ground. It is trite to say that when the tax is set aside the corre-
sponding penalty should also be set aside. Hence, the penalty which
is proportionate to the tax additions made towards the probable
suppression is also set aside.
Besides, there is not even an iota of evidence established by the AA
pointing out the wilfulness in the omission to file the return in Form
GST LAW TIMES  18th June 2020  164