Page 91 - GSTL_6th August 2020_Vol 39_Part 1

2020 ] MAHAVIR ENTERPRISE v. ASSISTANT COMMISSIONER OF STATE TAX 17
Section 164 confers powers upon the Government on the recommendations of the
Counsel by a notification to make rules for carrying out the provisions of the Act,
2017. Ms. Shah would submit that Rule 142(1)(a) of the Rules is valid and does
not travel beyond the provisions of the Act, 2017. In short, the submission of Ms.
Shah is that Rule 142(1)(a) is not invalid on account of excessive delegation.
13. In such circumstances referred to above, Ms. Shah prays that there
being no merit in this writ application, the same deserves to be rejected summari-
ly.
14. Having heard the Learned Counsel appearing for the parties and
having gone through the materials on record, two questions fall for our consider-
ation :
(1) Whether the impugned show cause notice deserves to be quashed
and set aside as prayed for by the writ applicant?
(2) Whether Rule 142(1)(a) of the Rules 2017 is in any manner ultra vires
the provisions of the parent Act i.e. the GST Act, 2017?
15. Before adverting to the rival submissions canvassed on either side,
we deem it appropriate to look into the few provisions of the Act and the Rules.
Section 122(1) of the Act, 2017 reads thus :
“122. Penalty for certain Offences. - (1) Where a Taxable Person who -
(i) Supply without invoice or supply with incorrect or false in-
voice;
(ii) Issuing invoice without making supply of goods/services un-
der this act or 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 payment becomes due;
(iv) Collects any tax in contravention of provisions of this act but
fails to pay 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 provisions of sub-
section (1) of section 51 or deducts an amount which is actual-
ly less than the amount required to be deducted under the
said sub-section, or where he fails to pay to the Government
under sub-section (2) there of, the amount deducted as tax;
(vi) fails to collect tax in accordance with the provisions of the sub-
section (1) of Section 52, or collects an amount which is less
than the amount required to be collected under the said sub-
section or where he fails to pay to the Government the amount
collected as tax under sub-section (3) of section 52;
(vii) take or utilizes of input tax credit without actual receipt of
goods or services or both either fully or partially, in contra-
vention of the provisions of this Act or the rules made there-
under;
(viii) Fraudulently obtains refund of tax under this act;
(ix) take or distribute input tax credit in contravention of Section
20, or rules made there under;

GST LAW TIMES  6th August 2020  91