The petitioner seeks writ of mandamus declaring the proceedings of the 3rd respondent vide Assessment order OC No:79/2019, dated 05.02.2019 in Form GSTR-ASMT 13 in so far as imposing penalty of ₹27,47,248/- as illegal, arbitrary and contrary to the provisions of the Central Goods and Services Tax Act, 2017 (for short, ‘CGST Act’) and the Andhra Pradesh State Goods and Services Tax Act, 2017 (for short, ‘APGST Act’) and violative of Articles 14 and 21 of the Constitution of India and to set aside the same and consequently, direct the 3rd respondent to refund the aforesaid penalty amount and for such other orders.
2. Heard learned counsel for petitioner, Sri P.Rosi Reddy, learned Assistant Solicitor General, representing on behalf of 1st respondent and Sri M.V.J.K.Kumar, learned standing counsel for respondents 2 and 3 and with their consent, this writ petition is disposed of at the admission stage.
3. Inter alia, the main plank of argument of learned counsel for petitioner is that the impugned order whereunder penalty was imposed was passed in terms of Section 122(2)(a) of CGST/APGST Act. Learned counsel would further submit that in order to impose the penalty in terms of Section 122(2)(a), the demand and recovery shall be made by following the procedure contemplated under Section 73 of APGST Act, in which case, the proper officer shall issue the notice under Section 73(1) within three months prior to the time limit specified in sub-section (10) of Section 73. However, such a show-cause notice was not preceded to the impugned order. He would further submit that even otherwise under Section 122(2)(a), for non-payment of the tax or for short paying or for refund wherein input tax credit was wrongly availed, the penalty that can be imposed is ₹10,000/- or 10% of the tax due, whichever is higher. That being so, in this case, he would argue that the tax imposed was ₹27,47,248/- and an equal amount of ₹27,47,248/- was imposed as penalty, which is quite contrary to Section 122(2)(a) of APGST Act. On these grounds, the learned counsel sought for setting aside the impugned order.
4. Learned standing counsel for respondents, Sri M.V.J.K.Kumar, fairly submitted that he has no objection for setting aside the impugned order and remanding the matter for fresh assessment.
5. In that view of the matter, this writ petition is allowed and the impugned order in O.C.No.79/2019, dated 05.02.2019 passed by the 3rd respondent is set aside and the matter is remitted back with a direction that a fresh assessment of tax and penalty shall be made by an authorized officer within four weeks from the date of receipt of a copy of this order strictly in accordance with the governing law and rules. As a sequel, miscellaneous applications pending for consideration, if any, shall stand closed. No costs.