The petitioner has filed this writ petition challenging the impugned notice dated 24.01.2019. The impugned notice has been issued on the ground that the petitioner had admittedly transferred goods without the goods accompanying E-way Bill.
2.The learned counsel for the petitioner submits that the lorry was detained and released on payment for a sum of ₹ 3,52,808/- on 01.02.2019. He further submits that there is no evasion of tax and in any event the fact remains that the E-way bill was generated post facto after the lorry was seized. He therefore submits that there was no evasion of tax. The case of the petitioner is that the respondents have wrongly issued the notice contrary to Sections 122 (1) which reads as under:-
”122.Penalty for certain Offences:
(1)Where a taxable person who-
(i)Supplies any goods or services or both without issue of any invoice of issues an incorrect or false invoice with regard to any such supply;
(ii)issues any invoice or bill without supply of goods or services or both in violation of the provisions of this Act or the rules made thereunder;
(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 the provisions of this Act but fails to pay the 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 the provisions of sub-section (1) of section 51, or deducts an amount which is 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) thereof, the amount deducted as tax;
(vi)fails to collect tax in accordance with the provisions of 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)takes or utilises input tax credit without actual receipt of goods or services or both either fully or partially, in contravention of the provisions of this Act or the rules made thereunder;
(viii)fraudulently obtains refund of tax under this Act;
(ix)takes or distributes input tax credit in contravention of Section 20, or the rules made thereunder;
(x)falsifies or substitutes financial records or produces fake accounts or documents or furnishes any false information or return with an intention to evade payment of tax due under this Act;
(xi)is liable to be registered under this Act but fails to obtain registeration;
(xii)furnishes any false information with regard to registration particulars, either at the time of applying for registration, or subsequently;
(xiii)obstructs or prevents any officer in discharge of his duties under this Act;
(xiv).transports any taxable goods without the cover of documents as may be specified in this behalf.
(xv)suppresses his turnover leading to evasion of tax under this Act;
(xvi)fails to keep, maintain or retain books of account and other documents in accordance with the provisions of this Act or the rules made thereunder;
(xvii)fails to furnish information or documents called for by an offence in accordance with the provisions of this Act or the rules made thereunder or furnishes false information or documents during any proceedings under this Act;
(xviii)supplies, transports or stores any goods which he has reasons to believe are liable to confiscation under this Act;
(xix)issues any invoice or document by using the registration number of another registered person;
(xx)tampers with, or destroys any material evidence or document;
(xxi)disposes off or tampers with any goods that have been detained, seized, or attached under this Act,
he shall be liable to pay a penalty of ten thousand rupees or an amount equivalent to the tax evaded 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 refund claimed fraudulently, whichever is higher.”
3.The respondent in their counter have stated that the demanded tax at the time of detention of the lorry which has been paid and the lorry was also released pursuant to which goods have been allowed to be moved and delivered to the consignee. The respondent however submits that the writ petition is liable to be dismissed as the petitioner has challenged the notice which is a proposal.
4.I have considered the arguments advanced by the learned counsel for the petitioner and the learned Government Counsel for the respondents.
5.The respondent have only issued a notice proposing to impose penalty and tax. It is open to the petitioner to explain the same before the respondents, considering the fact that, the petitioner has also got the vehicle released on payment of the amount on 01.02.2019, there is no merits in the present writ petition.
6.Therefore, this writ petition is dismissed with liberty to the petitioner to participate in the said proceeding by filing a reply to the impugned notice dated 24.01.2019 within a period of 30 days from the date of receipt of a copy of this order. The petitioner is also at liberty to explain the reason for the time gap/delay in the generation of E-way Bill which resulted in the detention of the lorry and the consignment. The petitioner may file appropriate reply within a period of 30 days thereafter. The respondent shall pass appropriate orders on merits and in accordance with law within a period of 30 days thereafter. Needless to state, before passing such order, the petitioner shall be heard either in person or through Video Conferencing.
7.Accordingly, this writ petition stands dismissed with the above observations. No costs. Consequently, connected miscellaneous petitions are closed.