Page 225 - GSTL_2nd July 2020 _Vol 38_Part 1

2020 ] IN RE : OMSAI PROFESSIONAL DETECTIVE AND SECURITY SERVICES PVT. LTD. 143
he shall be liable to pay a penalty of ten thousand
rupees or an amount equivalent to the tax evad-
ed or the tax not deducted under section 51 or
short deducted or deducted but not paid to the
Government or tax not collected under 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 re-
fund 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 AA has invoked Section 122, on which he has supposedly relied
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 AA’s interpreta-
tion is that it cannot be said that the appellant has acted deliberately
to suppress the outward taxable supplies, because the appellant has
filed GSTR-1 returns declaring the actual turnovers, hence prima fa-
cie no ground can be made for wilful suppression attribution. That
means, though the AA has assigned appellant’s action with a mo-
tive of wilful attempt for suppression of facts, but it is beyond any
doubt and the AA 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 holds legit. To levy of
penalty under Section 122, basically there must be suppression of
facts, but in the instant case the appellant has not attempted 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.

GST LAW TIMES  2nd July 2020  225