Whether Penalty can be imposed for late filing of  TDS return filed if  employee not well acquainted with procedure of e-filing of TDS return?

Where there was mere delay in furnishing TDS quarterly statements as employees of assessee bank were not well acquainted with procedure of e-filing of TDS return which was made effective from assessment year 2008-09, penalty imposed under section 272A(2)(k) was to be deleted

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Madras High Court

Smart Roofing Private Limited

Vs

State Tax Officer

W.P.(MD) No. 5720 of 2022

30/03/2022

The petitioner has challenged the impugned order dated 25.03.2022 in Form GST Mov-9 seeking to impose penalty of Rs.2,50,387/- under CGST and SGST each, totally for a sum of Rs.5,00,774/- under Section 129(3) of the CGST Act, 2017.

2. The petitioner had consigned the goods from its main place of business at Chennai to its additional place of business, Sastha Bombalan Modern Rice Mill, 3/237-B, Chintamani Road, Anuppandi, Madurai. This was not the additional place of business, as per the original registration certificate obtained by the petitioner on 02.08.2018. However, in the E-way bill and the delivery Challan, the petitioner had declared the consignee as 130, Ring Road Chintamani, Madurai, though the consignment was meant for being discharged at its new place of business at Sastha Mombalan Modern Rice Mill, 3/237-B, Chintamani Road, Anuppandi, Madurai, Tamil Nadu 625 009. Under these circumstances, the consignment along with lorry was detained on 22.03.2022. A show cause notice dated 23.03.2022, to which the petitioner has replied on 25.03.2022, which has culminated in the impugned order dated 25.03.2022.

3. It is the specific case of the petitioner that there is no intention to evade tax as the petitioner has generated E-way bill by declaring the consignee as its additional place of business at No.130, Ring Road Chintamani, Madurai. It is further submitted that ex post facto, i.e., on the date of the petitioner has taken steps for amending the registration by including Sastha Mombalan Modern Rice Mill, 3/237-B, Chintamani Road, Anuppandi, Madurai, Tamil Nadu 625 009 also as the additional place of business. It is submitted that the imposition of penalty under Section 129 (3) of the CGST and SGST is unwarranted under the circumstances.

4. Opposing the prayer, the learned Additional Government Pleader for the respondent submits that the petitioner has an alternate remedy under Section 107 of CGST Act, 2017/SGST Act, 2017 and therefore there is no merits in this writ petition.

5. I have considered the arguments advanced by the learned counsel for the petitioner and the learned Additional Government Pleader for the respondent.

6. No doubt, the authorities acting under the Act were justified in detaining the goods inasmuch as there is a wrong declaration in the E-way bill. However, the facts indicate that the consignor and the consignee are one and the same entity, namely, Head Office and the Branch Office. In this case, the petitioner has a new place of business, but had not altered the GST Registration. However, steps have been taken to ex post facto include the new place of business altering the GST Registration. The registration certificate has also been amended.

7. Considering the fact that there is only a technical breach committed by the petitioner and there is no intention to evade tax, I am inclined to quash the impugned order and allow this writ petition by directing the respondent to release the vehicle and the consignment to the petitioner, if the same has not been released already.

8.The writ petition is disposed of, in terms of the above observations. No costs. Consequently, connected miscellaneous petition is closed.

Calcutta High Court

Ashok Kumar Sureka Vs Assistant Commissioner

WPA No. 11085 of 2021

01/03/2022

Heard learned advocates appearing for the parties.

 In this writ petition, petitioner has challenged the impugned order of the appellate Commissioner dated March 18, 2021 confirming the original order dated September 11, 2019 passed by the adjudicating authority under section 129 of the West Bengal Goods and Services Act, 2017 for detention of the goods in question on the grounds that the e-way bill relating to the consignment in question had expired one day before, i.e. in the midnight of September 8, 2019, and that the goods was detained in the morning of September 9, 2019 on the grounds that the e-way bill has expired which is even less than one day and extension could not be made and petitioner submits that delay of few hours even less than a day of expiry of the validity of the tenure of the e-way bill was not deliberate and willful and was due to break down of the vehicle in question and there was no intention of any evasion of tax on the part of the petitioner.

The petitioner in support of his contention has relied on an unreported decision of the Supreme Court dated January 12, 2022 passed in Special Leave Appeal (C) No(s). 21132/2021 (Assistant Commissioner (ST) & Ors. v. M/s Satyam Shivam Papers Pvt. Limited & Anr.).

Learned advocate appearing for the respondent could not make out a case against the petitioner that the aforesaid violation was willful and deliberate or with a specific material that the intention of the petitioner was for evading tax

Considering the submission of the parties and the facts and circumstances of the case, this writ petition being WPA No.11085 of 2021 is disposed of by setting aside the impugned order of the appellate authority dated March 18, 2021 as well as the order of the adjudicating authority dated September 11, 2019 and as a consequence, the petitioner will be entitled to get the refund of the penalty and tax paid on protest subject to compliance of all legal formalities.

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NO Penalty for expiry of e-way bill as goods not delivered in time due to genuine reason

 Facts of the case

 Whether Order by High Court setting aside tax demand and penalty for expiry of e-way bill when goods could not be delivered within validity period because of traffic blockage is correct ?

Decision of Supreme Court

There is no denial by the GST Department of the traffic blockage at due to the anti CAA and NRC agitation.

Goods in question could not be taken to the destination within time for reasons beyond the control of respondent-taxpayer including traffic blockage due to agitation

State alone remains responsible for not providing smooth passage of traffic  

In our considered opinion, there was no material before GST Officer to come to the conclusion that there was evasion of tax by the petitioner merely on account of lapsing of time mentioned in the e-way bill because even the GST Officer does not say that there was any evidence of attempt to sell the goods to somebody else. On account of non-extension of the validity of the e-way bill by petitioner or the auto trolley driver, no presumption can be drawn that there was an intention to evade tax.

No question of law relating to operation and effect of Section 129 involved.

GST Considering the conduct of GST officer and harassment faced by taxpayer, additional costs of Rs. 59,000 imposed in addition to costs of Rs. 10,000 imposed by High Court