Page 223 - GSTL_2nd July 2020 _Vol 38_Part 1

2020 ] IN RE : OMSAI PROFESSIONAL DETECTIVE AND SECURITY SERVICES PVT. LTD. 141
sessee to decide. While he would, undoubtedly, run the risk of be-
ing subjected to penalty at 100% of the tax specified, the power con-
ferred on the assessing authority to recover penalty, equivalent to
the tax specified in the notice, is only after a notice is issued calling
upon the petitioner to show cause why penalty should not be im-
posed on him.
The impugned order, to the limited extent the petitioner was called
upon to pay penalty at 15%, is set aside. As the validity of the order
is not subjected to challenge in this Writ Petition on any other
ground, it is wholly unnecessary for us to examine the said order on
its merits.
Suffice it, therefore, to set aside the impugned order to the limited
extent the petitioner was called upon to pay penalty at 15%. The
Writ Petition stands disposed of accordingly. Needless to state that
this order shall not disable the respondent from issuing a penalty
notice and recover the penalty payable in term s of Section 74(1) of
the APGST Act. There shall be no order as to costs. Miscellaneous
petitions, if any, pending shall stand closed.
The Hon’ble High Court of Andhra Pradesh has discretely thrown
light on the penalty orders discussed above, where in penalty levied
in the same orders of assessment, and struck down such orders
mandating that a separate notice for passing penalty orders shall
always be issued before levy. In the instant case, the A.A has not
followed such procedure and arbitrarily clubbed the tax & penalty
orders without putting a notice to appellant, thus making it liable
for setting aside.
Before embarking on adjudication of this issue, it is very much es-
sential to have a comprehensive understanding of Section 122 (1 &
2) of GST Act, 2017, which are abstracted below :
Section 122.
(1) Where a taxable person who -
(i) supplies any goods or services or both without
issue of any invoice or issues an incorrect or false
invoice with regard to any such supply;
(ii) issues any invoice or bill without supply of
goods or services or both in violation of the pro-
visions of this Act or the rules made there under;
(iii) collects any amount as tax but fails to pay the
same to the Government beyond a period of
three months from the date on which such pay-
ment becomes due;
(iv) collects any tax in contravention of the provi-
sions of this Act but fails to pay the same to the
Government beyond a period of three months
from the date on which such payment becomes
due;
(v) fails to deduct the tax in accordance with the
provisions of sub-section (1) of Section 51, or
deducts an amount which is less than the amount
required to be deducted under the said sub-
section, or where he fails to pay to the Govern-
GST LAW TIMES  2nd July 2020  223