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2019 (8) TMI 1572 - Commissioner - GSTDelayed/Non-payment of GST - huge delay in the realisation of the amounts due from the clients - Non-filing of returns - best judgment orders - Invocation of section 62 - GSTR-3B returns - wilful suppression of facts or not - levy of 100% penalty - levy of interest. HELD THAT:- In view of the emerged anomalies involving invoking of Section 62 unlawfully, because the relevant Section 39 does not speak of GSTR-3B in the listed returns, as clarified in the above discussed judgment and in view of the erroneous method adopted by AA for estimating outward taxable supplies through best judgment without mentioning reasons/evidence, hence the tax so levied by the AA of ₹ 36,22,84,718/- is annulled and modified as per actual tax liability of the appellant for the period from Dec., 2017 to Aug., 2018. In the result, the appeal is modified by fixing the actual tax liability from ₹ 36,22,84,718/- (annulled) (to be determined as per GSTR-1 returns of the appellant for the period from Dec., 2017 to Aug., 2018). Levy of penalty of ₹ 36,22,84,718/- - HELD THAT:- 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 interpretation 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 facie no ground can be made for wilful suppression attribution. That means, though the AA has assigned appellant’s action with a motive 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 penalty 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 corresponding 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 GSTR-3B and/or in the determined suppression of outward tax. None of the facts that could give rise to the inferences of the ‘wilfulness’ are specified in the very brief pre-common assessment Show Cause Notice and also in the common assessment orders in Form GST ASMT-13. Hence, the levy of penalty @ 100% of determined turnovers are also to be deleted. Levy of interest of ₹ 2,76,31,152/- - HELD THAT:- Whenever any dealer failed to discharge applicable tax in time, is liable to pay interest @ 18% for the delayed period - the levy of interest is upheld, but the A.A is directed to compute leviable interest as on date against the actual tax to be paid by the appellant as discussed at above paras. In the end, appeal on this aspect is confirmed. The appellant also not advanced any objections on this aspect. The assessment is partly modified, partly annulled and partly confirmed on the levy made by the assessing authority.
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