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Offences, Penalties &
Prosecution
Disclaimer 2
The information cited in this presentation has been drawn from various sources (including
study material prepared by The Institute of Cost Accountants of India and The Institute of
Chartered Accountants of India). While every efforts have been made to keep the
information in this presentation error free, no responsibility for any typographical or clerical
error which may have crept in while compiling the information provided can be taken.
The presentation has been prepared to provide an overview of the applicable law pertaining
to the subject matter. For detailed insight and for better understanding, its is advised to refer
to relevant provisions in the Act and the related rules & notifications.
Offences and consequences 3
Offences and
Penalties
Major Offences 5
• Major offences
• Tax not paid
• Tax short paid
• Input Tax credit wrongly availed or utilised
• Erroneous refund of tax
• Intention
• Fraudulent, through wilful-misstatement or by supressing facts
• Other than fraud, misstatement or supressing facts
• Action
• Demand & Recovery proceedings u/s 73 or u/s 74 of the Act
Offences and Penalties 6
21 specified offences, Penalty Rs. 10,000 or amount of tax, whichever is
higher [Sec 122(1) of CGST Act]
• Supply of goods or services or both without issue of any invoice or issue of incorrect or
false invoice with regard to any such supply.
• Issue of any invoice or bill of supply without supply of goods or services or both in
violation of the provisions of the Act or Rules.
• Collection of any amount as tax but failing to pay the same to the Government beyond a
period of 3 months from the date on which such payment becomes due.
• Collection of any tax in contravention of the provisions of the Act but failing to pay the
same to the Government beyond a period of 3 months from the date on which such
payment becomes due.
Offences and Penalties 7
Specified offences
• Failing to deduct or less deduction or failing to remit the tax under provisions of Sec 51 of
CGST Act
• Failing to collect or less collection or failing to remit the tax under provisions of Section
52 of CGST Act
• Taking or utilising Input Tax Credit without actual receipt of goods or services or both
either fully or partially.
• Fraudulently obtaining refund of tax under this Act
• Taking or distributing Input Tax Credit in contravention to Sec 20 of CGST Act
• Falsifying/ substituting financial records or producing fake accounts/ documents or
furnishing any false information or return with an intention to evade payment of tax
Offences and Penalties 8
Specified offences
• Failing to obtain registration, even though liable to be registered under this Act.
• Furnishing any false information with regard to registration particulars, either at the time
of applying for registration or subsequently.
• Obstructing or preventing any officer in discharge of his duties
• Transporting any taxable goods without the cover of documents, as specified.
• Suppressing turnover leading to evasion of tax.
• Failing to keep, maintain or retain books of account and other documents in accordance
with the provisions of this Act
Offences and Penalties 9
Specified offences
• Failing to furnish information/ documents called for by an officer or furnishing false
information/ documents during any proceedings under this Act
• Supplying, transporting or storing any goods which, he has reasons to believe, are liable to
confiscation.
• Issuing any invoice/ document by using the registration number of another registered
person
• Tampering with or destroying any material evidence or document
• Disposing off or tampering with any goods that have been detained, seized or attached
Rs. 10,000 or tax, whichever is higher
Offences and Penalties 10
Other offences
• U/s 122(2) of CGST Act, in case of supplies on which tax has not been paid or short paid
or erroneously refunded or Input Tax credit has been wrongly availed or utilised, the
penalty shall be
• Equal to Tax or Rs. 10,000, whichever is higher (cases relating to fraud, wilful mistake, supressing facts)
• 10% of tax or Rs. 10,000, whichever is higher, for other cases
• U/s 122(1A) of CGST Act, any person who retains the benefit of a transaction covered
under certain specified offences and at whose instance such transaction is conducted, the
penalty shall be equal to the tax evaded or Input Tax Credit availed or passed on.
Offences and Penalties 11
Aiding/ Abating offences [Sec 122(3) of CGST Act]
• Any person who aids or abets any of the 21 specified offences
• Acquires possession of goods or in any way concerns himself in any other manner with
any goods which he knows or has reasons to believe are liable for confiscation
• Receives or is in any way concerned with the supply of, or deals with any supply of
services which he knows or reasons to believe are in contravention to the Act
• Fails to appear before the Officer when issued with a summon for appearance to give
evidence or produce a document in an inquiry.
• Fails to issue invoice or fails to account for an invoice in his Books of Account
Penalty up to Rs. 25,000
Offences and Penalties 12
• U/s 150 of CGST Act, Local authorities, Government bodies, and other authorities are
required to provide information from time to time and file prescribed returns
• Failure to file returns or provide information on time invokes penal provisions, wherein
the Proper Officer shall serve notice.
• Failure to respond within the timeframe may lead to penalty of Rs. 100 per day, subject to
a maximum of Rs. 5,000 (Sec 123 of CGST Act)
Offences and Penalties 13
• U/s 151 of CGST Act, the Commissioner, by notification, may direct that statistics may be
collected relating to any matter dealt with by or in connection with the Act.
• Upon issue of such request, the concerned persons is required to furnish such information
or returns, in such form and manner as may be prescribed.
• In cases of wilful default in providing the information or providing false information
wilfully, the fine shall be up to Rs. 10,000. In case of continuing offence, the fine shall be
Rs. 100 per day, subject to maximum of Rs. 25,000 [Sec 124 of CGST Act]
General Discipline – Sec 126 14
• No penalty for minor breaches i.e. omission or mistake which is easily rectifiable as
apparent on record or when the tax amount is < Rs. 5,000
• Penalty to be in commensurate with the degree and severity of the breach
• No penalty shall be imposed without giving the other party a fair chance to be heard.
• Nature of breach and applicable law to be specified in the Notice/ Order.
• In case of voluntary disclosure, prior to the discovery of the breach by the Officer, the
Proper Officer may consider imposing lower penalty.
• Above provisions not applicable where penalty is specified as a fixed sum or as fixed
percentage.
General Discipline 15
• If no penalty separately specified for an offence, the penalty can be imposed up to a
maximum of Rs. 25,000 (Sec 125 of CGST Act)
• If the Proper officer is of the view that a person is liable to a penalty and the same is not
covered under any other provisions of the Act, he may issue an Order levying such penalty
after giving a reasonable opportunity of being heard to such person (Sec 127 of CGST Act)
• Government, on the recommendations of the Council, may, by notification, waive in part
or full, any penalty or any late fee. [Sec 128 of CGST Act]
• Once the amount (tax + interest + penalty, if any) is paid, all proceedings are deemed
concluded (except provisions relating to prosecution).
Detention of goods and conveyances 16
• Any transportation or storage in transit in contravention to the provisions of the Act shall
be liable to detention or seizure of goods and conveyance [Sec 129(1) of CGST Act]
• Goods and conveyance, so detained or seized, shall be released on
• Payment of tax and penalty equal to 100% of tax {Payment of penalty equal to 200% of tax} (2% of
value of goods or Rs. 25,000, whichever is lower, in case of exempted goods) → Owner comes forward
• Payment of tax and penalty equal to 50% of value of goods {Payment of penalty equal to 50% of value
of goods or 200% of the tax payable, whichever is higher} (5% of value of goods or Rs. 25,000,
whichever is lower, in case of exempted goods) → Owner doesn’t come forward
• Furnishing security equivalent to the amount payable as above.
• No goods or conveyance to be detained or seized without giving Order of detention or
seizure on the person transporting the goods [proviso to Sec 129(1) of CGST Act].
Text in Blue denotes changes proposed in Finance Act, 2021
Detention of goods and conveyances 17
• Goods so seized can be provisionally released upon executing a bond and furnishing
security, as may be prescribed. [Sec 129(2) of CGST Act] { Section Omitted}
• The proper officer detaining or seizing goods or conveyances shall issue a Notice {within
7 days of such detention or seizure} specifying the tax and penalty payable and thereafter,
pass an Order {within 7 days of the notice} for payment of tax and penalty. [Sec 129(3) of
CGST Act]
• No tax, interest or penalty shall be determined without giving the person concerned an
opportunity of being heard [Sec 129(4) of CGST Act]
• On payment of the amount in the Order, all proceedings in respect to the Notice shall be
deemed concluded. [Sec 129(5) of CGST Act]
Text in Blue denotes changes proposed in Finance Act, 2021
Detention of goods and conveyances 18
• If tax and penalty not paid within 14 days* of such detention or seizure, proceedings
under provisions of confiscation shall apply [Sec 129(6) of CGST Act] {Substituted}
• If the penalty is not paid within 15 days* from the date of receipt of Order passed, the
goods or conveyance so detained or seized shall be liable to be sold or disposed of to
recover the penalty payable.
• Conveyance shall be released on payment by the transporter of the penalty amount as per
the Order of Rs. 1 lakh, whichever is less.
Text in Blue denotes changes proposed in Finance Act, 2021
Confiscation of goods and conveyances 19
• U/s 130(1) of CGST Act, cases which will fall under this section – Any person, who
• Supplies or receives goods in contravention to the law with an intent of tax evasion
• Doesn’t account for the goods on which he is liable to pay tax
• Supplies goods liable to tax without having applied for registration
• Contravenes any of the provisions of this Act with an intent to evade payment of tax
• Uses any conveyance as a mean of transport for carriage in contravention to law*
• Penalty – As per the provisions of Sec 122 of CGST Act
• No order for confiscation of goods or conveyance or for imposition of penalty shall be
issued without giving the person an opportunity of being heard [Sec 130(4) of CGST Act]
• Once the goods or conveyance is confiscated, the title shall, thereupon, vest in the
Government [Sec 130(5) of CGST Act]
Confiscation of goods and conveyances 20
• Proper Officer shall give an option to the owner of goods to pay a fine in lieu of confiscation.
• Fine cannot exceed the market value of goods confiscated. [1st proviso to Sec 130(2) of CGST Act]
• Aggregate of Fine and penalty cannot be less than penalty leviable in case the goods would have been
detained {cannot be less than 100% of the tax payable on such goods} [2nd proviso to Sec 130(2) of CGST Act]
• In order to avoid confiscation of the conveyance, the owner of the conveyance used for carriage has an
option to pay a fine equal to the tax payable on the goods being transported thereon [3rd Proviso to Sec 130(2)
of CGST Act]
• Fine is in addition to the tax, penalty or any charges payable. [Sec 130(3) of CGST Act] {Section
omitted}
• If satisfied that goods or conveyance is not required in any proceedings, the Proper Officer, after
giving reasonable time, not exceeding 3 months to pay fine in lieu of confiscation, shall proceed to
dispose the same and deposit the sale proceeds with the Exchequer. [Sec 130(7) of CGST Act]
Text in Blue denotes changes proposed in Finance Act, 2021
Offences and
Prosecution
Offences and Prosecution 22
Offences – 12 specified offences [Sec 132(1) of CGST Act]
• Supplying any goods or services or both without issue of any invoice with the intention to
evade tax
• Issuing any invoice or bill without supply of goods or services or both leading to wrongful
availment or utilisation of Input Tax Credit or refund of tax
• Availment of Input Tax Credit using invoice or bill issued without getting supply or
without issue of invoice or bill relating to such goods or services or both
• Collecting any amount as tax but failing to pay the same to the Government beyond a
period of 3 months from the date on which such payment becomes due
• Evading tax or fraudulently obtaining refund
• Falsifying or substituting financial records or producing fake accounts/ documents or
furnishing any false information with an intention to evade payment of tax due
Offences and Prosecution 23
Offences
• Obstructing or preventing any officer in the discharge of his duties
• Acquiring possession of goods or in any way concerning himself in any other manner with
any goods which, he knows or has reasons to believe, are liable to confiscation
• Receiving, or is in any way, concerned with the supply of, or in any other manner dealing
with any supply of services which, he knows or has reasons to believe, are in
contravention to the Act
• Tampering with or destroying any material evidence or documents
• Failing to supply any information or supplying false information which he is required to
supply under this Act
• Attempting to commit or abating any of the offences mentioned above
Offences and Prosecution 24
Amount of Tax Evaded or ITC wrongly
availed or utilised or Refund wrongly taken
Period of Maximum Imprisonment and
Fine
Exceeding Rs. 500 Lacs 5 years and Fine
Exceeding Rs. 200 Lacs up to Rs. 500 Lacs 3 years and Fine
Exceeding Rs. 100 Lacs up to Rs. 200 Lacs 1 year and Fine
Commits/ abets certain specified offences 6 months or Fine or both
In case of repetition of Offence 5 years and Fine
Offences relating to evasion where the amount is more
than Rs. 500 Lacs, are cognizable and non-bailable
Min 6
months
Power to arrest – Sec 69 25
• Where the Commissioner has reasons to believe that the person has committed certain specified
offences which are liable to prosecution and
• Where the amount of evasion is > Rs. 2 Cr, or
• Where any offence liable for prosecution has been committed again
he may, by Order, authorise any officer to arrest such person.
• Where the arrest has been made and
• where the amount of tax evasion is > Rs. 5 Cr., the officer authorised to arrest the person shall inform such
person of the grounds of arrest and produce him before a Magistrate within 24 hours.
• in other cases, bail shall be admitted or in default of bail, the person shall be forwarded to the custody of the
Magistrate.
• In case of a non-cognizable and bailable offence, the Deputy Commissioner or the Assistant
Commissioner shall, for the purpose of releasing an arrested person on bail or otherwise, have the
same powers and be subject to the same provisions as an officer-in-charge of a police station.
Ground Rules 26
• A person shall not be prosecuted for any offence except with the previous sanction of the
Commissioner. [Sec 132(6) of CGST Act]
• Prior sanction of the Commissioner is required for the Courts to take cognizance of any
offence punishable under the Act. No Court inferior to that of a Magistrate of the First
Class shall try any such offence under the Act. [Sec 134 of CGST Act]
• Obligation cast on the accused to prove the absence of mens-rea, else its implied that
offence has been committed intentionally and with guilty mind. [Sec 135 of CGST Act]
• U/s 136 of CGST Act, a statement recorded during the course of investigation or enquiry
shall be relevant to prove the truthfulness of the facts when,
• the person who made the statement is not available during proceedings due to death, unavailability,
incapacity, kept out of way, presence can’t be obtained without unreasonable delay.
• the person is examined as a witness before the Court and the Court admits such statement as evidence
in the interest of justice.
Ground Rules – Sec 137 27
• Where an offence has been committed by a company, every person who, at the time the
offence was committed, was in charge of and was responsible to, the company for the
conduct of business of the company, as well as the company, shall be deemed to be guilty
of the offence and shall be liable to be proceeded against and punished accordingly.
• If it is proved that the offence has been committed with the consent or connivance of, or
is attributable to any negligence on the part of,
• In case of Company, the Person-in-charge such as Director, Secretary, Manager etc., they shall be
considered guilty and shall be liable for punishment along with Company
• In case of Partnership Firm or LLP, HUF or Trust, Partner of Firm or LLP/ Karta of Family/
Managing Trustee of the Trust shall be deemed to be guilty.
• If the person proves that the offence was committed without his knowledge or that he had
exercised suitable precautions and all exercised due diligence to prevent such offence, no
punishment can be rendered to him.
Offences and Prosecution 28
• U/s 133(1) of CGST Act, any person engaged in collection of statistics or any officer
having access to information or person engaged in connection with services on the
common portal wilfully discloses any information, otherwise than in execution of his
duties, shall be be prosecuted.
• Penalty – Fine up to Rs. 25,000 or 6 months imprisonment or both
• Prosecution proceedings can be initiated in case
• A Government servant, with the previous sanction of the Government
• Not a Government servant, with the previous sanction of the Commissioner
Compounding of offence 29
• Can be initiated either before or after institution of prosecution [Sec 138(1) of CGST Act]
• Exclusions
• Person who has been allowed to compound once in respect of certain specified offences which were
liable for prosecution (mostly offences relating to supplies, ITC, Refund or falsifying docs)
• Person who has been allowed to compound once in respect of any offence (except certain specified
offences liable for prosecution) in respect of supplies of value exceeding Rs. 1 Cr.
• Person who has been accused of committing an offence under this Act which is also an offence under
any other law for the time being in force
• Person convicted for an offence under this Act by a Court
• Person who has been accused of committing certain specified offence (other than those having
monetary implications) which are liable for prosecution
• Any other person or offence, as may be prescribed
Compounding of offence 30
• U/s 138(2) of CGST Act, Compounding amount shall be as prescribed, subject to
• Minimum – Rs. 10,000 or 50% of tax involved, whichever is higher
• Maximum – Rs. 30,000 or 150% of tax, whichever is higher
• Compounding shall be allowed only after making payment of tax, interest, and penalty [2nd
proviso to Sec 138(1) of CGST Act]
• Compounding allowed under this Act shall not affect the proceedings, if any, instituted
under any other law. [1st proviso to Sec 138(1) of CGST Act]
• Once compounding amount paid, no further proceedings can be initiated. If already
initiated, the proceeding shall stand abated [Sec 138(3) of CGST Act]
Form GST CPD-01
Application by the
Person to the
Commissioner
Form GST CPD-02
Acceptance/
Rejection Order
within 90 days
Closure
Compounding Fee to
be paid within 30
days else Order void
Thank You
Manmohan Daga
Daga & Associates
9804199500
mmdaga@hotmail.com
Finance Act 2021 32
Section Provision of Law Current Proposed Remarks
Expl 1(ii) of
Sec 74
Demand and recovery provisions
If notice issued and proceedings
concluded u/s 73 or u/s 74, the
proceedings against all the
persons liable to pay penalty u/s
122, 125, 129 and 130 are deemed
to be concluded.
If notice issued and proceedings
concluded u/s 73 or u/s 74, the
proceedings against all the
persons liable to pay penalty u/s
122 and 125 are deemed to be
concluded.
Detention, seizure and
confiscation provisions separated
from the Demand and Recovery
provisions
129(1)(a)
Penalty in case of detention of goods and
conveyance (in case the owner comes
forward)
Tax and Penalty equal to 100% of
tax payable
Penalty equal to 200% of tax
payable
129(1)(b)
Penalty in case of detention of goods and
conveyance (in case the owner doesn't
comes forward)
Tax and penalty equal to 50% of
value of goods
Penalty shall be higher of a) 50%
of the value of goods b) 200% of
the tax payable
129(2)
Execution of Bond and Furnishing of security
for release of goods and conveyance so
detained or seized
The goods seized shall be
released, on a provisional
basis, upon execution of a bond
and furnishing of a security
Omitted
For provisionally releasing goods,
the requirement of executing
bond removed. Now, for release,
security will have to be furnished
129(3)
Notice by Proper Officer detaining the goods
and conveyance and Order thereof
The proper officer detaining or
seizing goods or conveyances
shall issue a notice specifying the
tax and penalty payable and
thereafter, pass an order for
payment of tax and penalty
The proper officer detaining or
seizing goods or conveyance shall
issue a notice within 7 days of
such detention or seizure,
specifying the penalty payable,
and thereafter, pass an order
within a period of 7 days from the
date of service of such notice, for
payment of penalty
The law now prescribes a time
limit for issuance of notice and
passing the order of detention or
seizure
1. Only the penalty amount needs
to be paid in order to secure
release of goods. Tax amount to
be paid through GSTR-3B
2. Penalty amount in case of Sec
129(1)(b) modified
Finance Act 2021 33
Section Provision of Law Current Proposed Remarks
129(4)
Person concerned to be given an opportunity
of being heard
No tax, interest or penalty shall
be determined without giving the
person concerned an opportunity
of being heard
No penalty shall be determined
without giving the person
concerned an opportunity of
being heard
Procedural, since tax and interest
are now to be paid through GSTR-
3B
129(6)
In case of failure to pay penalty, provisions
relating to confiscation to be initiated
If the person transporting any
goods or the owner of the goods
fails to pay the amount of tax and
penalty within 14 days, provisions
of confiscation shall be initiated
If the person transporting any
goods or the owner of such goods
fails to pay the amount of penalty
within 15 days from the date of
receipt of the copy of the order,
the goods or conveyance so
detained or seized shall be liable
to be sold or disposed of.
Provided that the conveyance
shall be released on payment by
the transporter of penalty as
determined or Rs. 1 Lac,
whichever is less.
Earlier, in case of non payment,
the goods and conveyance was
liable to be confiscated. Now, the
provision is to directly sell or
dispose off the same.
The transporter has been given an
option to get his conveyance
released on payment of penalty
Finance Act 2021 34
Section Provision of Law Current Proposed Remarks
130(1)
Notwithstanding anything
contained in this Act, if any
person…...
Where any person….....
The confiscation provision no
longer overrides any other
provision of the Act
2nd
proviso to
Sec 130(2)
Aggregate of fine and penalty
leviable shall not be less than the
amount of penalty leviable u/s
129(1)
Aggregate of fine and penalty
leviable shall not be less than the
penalty equal to 100% of the tax
payable on such goods
Proceedings of confiscation
stands delinked with the penalty
proceedings due to detention of
goods.
130(3)
Where any fine in lieu of
confiscation of goods or
conveyance is imposed, the
owner of such goods or
conveyance shall, in addition, be
liable to any tax, penalty and
charges payable in respect of such
goods or conveyance
Omitted
Requirement to pay tax, penalty
and charges in addition to the
fine payable in respect of the
goods or conveyance has been
omitted
151 Power to collect statistics
Commissioner to issue
notification to call for any
information.
Once notification is issued, the
person is then called to furnish
such information or returns
Commissioner or any authorised
person, by order, may direct the
person to furnish information
Empowernment to the
Commissioner to call for
information
Confiscation

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Offences, Penalties & Prosecution Under GST

  • 2. Disclaimer 2 The information cited in this presentation has been drawn from various sources (including study material prepared by The Institute of Cost Accountants of India and The Institute of Chartered Accountants of India). While every efforts have been made to keep the information in this presentation error free, no responsibility for any typographical or clerical error which may have crept in while compiling the information provided can be taken. The presentation has been prepared to provide an overview of the applicable law pertaining to the subject matter. For detailed insight and for better understanding, its is advised to refer to relevant provisions in the Act and the related rules & notifications.
  • 5. Major Offences 5 • Major offences • Tax not paid • Tax short paid • Input Tax credit wrongly availed or utilised • Erroneous refund of tax • Intention • Fraudulent, through wilful-misstatement or by supressing facts • Other than fraud, misstatement or supressing facts • Action • Demand & Recovery proceedings u/s 73 or u/s 74 of the Act
  • 6. Offences and Penalties 6 21 specified offences, Penalty Rs. 10,000 or amount of tax, whichever is higher [Sec 122(1) of CGST Act] • Supply of goods or services or both without issue of any invoice or issue of incorrect or false invoice with regard to any such supply. • Issue of any invoice or bill of supply without supply of goods or services or both in violation of the provisions of the Act or Rules. • Collection of any amount as tax but failing to pay the same to the Government beyond a period of 3 months from the date on which such payment becomes due. • Collection of any tax in contravention of the provisions of the Act but failing to pay the same to the Government beyond a period of 3 months from the date on which such payment becomes due.
  • 7. Offences and Penalties 7 Specified offences • Failing to deduct or less deduction or failing to remit the tax under provisions of Sec 51 of CGST Act • Failing to collect or less collection or failing to remit the tax under provisions of Section 52 of CGST Act • Taking or utilising Input Tax Credit without actual receipt of goods or services or both either fully or partially. • Fraudulently obtaining refund of tax under this Act • Taking or distributing Input Tax Credit in contravention to Sec 20 of CGST Act • Falsifying/ substituting financial records or producing fake accounts/ documents or furnishing any false information or return with an intention to evade payment of tax
  • 8. Offences and Penalties 8 Specified offences • Failing to obtain registration, even though liable to be registered under this Act. • Furnishing any false information with regard to registration particulars, either at the time of applying for registration or subsequently. • Obstructing or preventing any officer in discharge of his duties • Transporting any taxable goods without the cover of documents, as specified. • Suppressing turnover leading to evasion of tax. • Failing to keep, maintain or retain books of account and other documents in accordance with the provisions of this Act
  • 9. Offences and Penalties 9 Specified offences • Failing to furnish information/ documents called for by an officer or furnishing false information/ documents during any proceedings under this Act • Supplying, transporting or storing any goods which, he has reasons to believe, are liable to confiscation. • Issuing any invoice/ document by using the registration number of another registered person • Tampering with or destroying any material evidence or document • Disposing off or tampering with any goods that have been detained, seized or attached Rs. 10,000 or tax, whichever is higher
  • 10. Offences and Penalties 10 Other offences • U/s 122(2) of CGST Act, in case of supplies on which tax has not been paid or short paid or erroneously refunded or Input Tax credit has been wrongly availed or utilised, the penalty shall be • Equal to Tax or Rs. 10,000, whichever is higher (cases relating to fraud, wilful mistake, supressing facts) • 10% of tax or Rs. 10,000, whichever is higher, for other cases • U/s 122(1A) of CGST Act, any person who retains the benefit of a transaction covered under certain specified offences and at whose instance such transaction is conducted, the penalty shall be equal to the tax evaded or Input Tax Credit availed or passed on.
  • 11. Offences and Penalties 11 Aiding/ Abating offences [Sec 122(3) of CGST Act] • Any person who aids or abets any of the 21 specified offences • Acquires possession of goods or in any way concerns himself in any other manner with any goods which he knows or has reasons to believe are liable for confiscation • Receives or is in any way concerned with the supply of, or deals with any supply of services which he knows or reasons to believe are in contravention to the Act • Fails to appear before the Officer when issued with a summon for appearance to give evidence or produce a document in an inquiry. • Fails to issue invoice or fails to account for an invoice in his Books of Account Penalty up to Rs. 25,000
  • 12. Offences and Penalties 12 • U/s 150 of CGST Act, Local authorities, Government bodies, and other authorities are required to provide information from time to time and file prescribed returns • Failure to file returns or provide information on time invokes penal provisions, wherein the Proper Officer shall serve notice. • Failure to respond within the timeframe may lead to penalty of Rs. 100 per day, subject to a maximum of Rs. 5,000 (Sec 123 of CGST Act)
  • 13. Offences and Penalties 13 • U/s 151 of CGST Act, the Commissioner, by notification, may direct that statistics may be collected relating to any matter dealt with by or in connection with the Act. • Upon issue of such request, the concerned persons is required to furnish such information or returns, in such form and manner as may be prescribed. • In cases of wilful default in providing the information or providing false information wilfully, the fine shall be up to Rs. 10,000. In case of continuing offence, the fine shall be Rs. 100 per day, subject to maximum of Rs. 25,000 [Sec 124 of CGST Act]
  • 14. General Discipline – Sec 126 14 • No penalty for minor breaches i.e. omission or mistake which is easily rectifiable as apparent on record or when the tax amount is < Rs. 5,000 • Penalty to be in commensurate with the degree and severity of the breach • No penalty shall be imposed without giving the other party a fair chance to be heard. • Nature of breach and applicable law to be specified in the Notice/ Order. • In case of voluntary disclosure, prior to the discovery of the breach by the Officer, the Proper Officer may consider imposing lower penalty. • Above provisions not applicable where penalty is specified as a fixed sum or as fixed percentage.
  • 15. General Discipline 15 • If no penalty separately specified for an offence, the penalty can be imposed up to a maximum of Rs. 25,000 (Sec 125 of CGST Act) • If the Proper officer is of the view that a person is liable to a penalty and the same is not covered under any other provisions of the Act, he may issue an Order levying such penalty after giving a reasonable opportunity of being heard to such person (Sec 127 of CGST Act) • Government, on the recommendations of the Council, may, by notification, waive in part or full, any penalty or any late fee. [Sec 128 of CGST Act] • Once the amount (tax + interest + penalty, if any) is paid, all proceedings are deemed concluded (except provisions relating to prosecution).
  • 16. Detention of goods and conveyances 16 • Any transportation or storage in transit in contravention to the provisions of the Act shall be liable to detention or seizure of goods and conveyance [Sec 129(1) of CGST Act] • Goods and conveyance, so detained or seized, shall be released on • Payment of tax and penalty equal to 100% of tax {Payment of penalty equal to 200% of tax} (2% of value of goods or Rs. 25,000, whichever is lower, in case of exempted goods) → Owner comes forward • Payment of tax and penalty equal to 50% of value of goods {Payment of penalty equal to 50% of value of goods or 200% of the tax payable, whichever is higher} (5% of value of goods or Rs. 25,000, whichever is lower, in case of exempted goods) → Owner doesn’t come forward • Furnishing security equivalent to the amount payable as above. • No goods or conveyance to be detained or seized without giving Order of detention or seizure on the person transporting the goods [proviso to Sec 129(1) of CGST Act]. Text in Blue denotes changes proposed in Finance Act, 2021
  • 17. Detention of goods and conveyances 17 • Goods so seized can be provisionally released upon executing a bond and furnishing security, as may be prescribed. [Sec 129(2) of CGST Act] { Section Omitted} • The proper officer detaining or seizing goods or conveyances shall issue a Notice {within 7 days of such detention or seizure} specifying the tax and penalty payable and thereafter, pass an Order {within 7 days of the notice} for payment of tax and penalty. [Sec 129(3) of CGST Act] • No tax, interest or penalty shall be determined without giving the person concerned an opportunity of being heard [Sec 129(4) of CGST Act] • On payment of the amount in the Order, all proceedings in respect to the Notice shall be deemed concluded. [Sec 129(5) of CGST Act] Text in Blue denotes changes proposed in Finance Act, 2021
  • 18. Detention of goods and conveyances 18 • If tax and penalty not paid within 14 days* of such detention or seizure, proceedings under provisions of confiscation shall apply [Sec 129(6) of CGST Act] {Substituted} • If the penalty is not paid within 15 days* from the date of receipt of Order passed, the goods or conveyance so detained or seized shall be liable to be sold or disposed of to recover the penalty payable. • Conveyance shall be released on payment by the transporter of the penalty amount as per the Order of Rs. 1 lakh, whichever is less. Text in Blue denotes changes proposed in Finance Act, 2021
  • 19. Confiscation of goods and conveyances 19 • U/s 130(1) of CGST Act, cases which will fall under this section – Any person, who • Supplies or receives goods in contravention to the law with an intent of tax evasion • Doesn’t account for the goods on which he is liable to pay tax • Supplies goods liable to tax without having applied for registration • Contravenes any of the provisions of this Act with an intent to evade payment of tax • Uses any conveyance as a mean of transport for carriage in contravention to law* • Penalty – As per the provisions of Sec 122 of CGST Act • No order for confiscation of goods or conveyance or for imposition of penalty shall be issued without giving the person an opportunity of being heard [Sec 130(4) of CGST Act] • Once the goods or conveyance is confiscated, the title shall, thereupon, vest in the Government [Sec 130(5) of CGST Act]
  • 20. Confiscation of goods and conveyances 20 • Proper Officer shall give an option to the owner of goods to pay a fine in lieu of confiscation. • Fine cannot exceed the market value of goods confiscated. [1st proviso to Sec 130(2) of CGST Act] • Aggregate of Fine and penalty cannot be less than penalty leviable in case the goods would have been detained {cannot be less than 100% of the tax payable on such goods} [2nd proviso to Sec 130(2) of CGST Act] • In order to avoid confiscation of the conveyance, the owner of the conveyance used for carriage has an option to pay a fine equal to the tax payable on the goods being transported thereon [3rd Proviso to Sec 130(2) of CGST Act] • Fine is in addition to the tax, penalty or any charges payable. [Sec 130(3) of CGST Act] {Section omitted} • If satisfied that goods or conveyance is not required in any proceedings, the Proper Officer, after giving reasonable time, not exceeding 3 months to pay fine in lieu of confiscation, shall proceed to dispose the same and deposit the sale proceeds with the Exchequer. [Sec 130(7) of CGST Act] Text in Blue denotes changes proposed in Finance Act, 2021
  • 22. Offences and Prosecution 22 Offences – 12 specified offences [Sec 132(1) of CGST Act] • Supplying any goods or services or both without issue of any invoice with the intention to evade tax • Issuing any invoice or bill without supply of goods or services or both leading to wrongful availment or utilisation of Input Tax Credit or refund of tax • Availment of Input Tax Credit using invoice or bill issued without getting supply or without issue of invoice or bill relating to such goods or services or both • Collecting any amount as tax but failing to pay the same to the Government beyond a period of 3 months from the date on which such payment becomes due • Evading tax or fraudulently obtaining refund • Falsifying or substituting financial records or producing fake accounts/ documents or furnishing any false information with an intention to evade payment of tax due
  • 23. Offences and Prosecution 23 Offences • Obstructing or preventing any officer in the discharge of his duties • Acquiring possession of goods or in any way concerning himself in any other manner with any goods which, he knows or has reasons to believe, are liable to confiscation • Receiving, or is in any way, concerned with the supply of, or in any other manner dealing with any supply of services which, he knows or has reasons to believe, are in contravention to the Act • Tampering with or destroying any material evidence or documents • Failing to supply any information or supplying false information which he is required to supply under this Act • Attempting to commit or abating any of the offences mentioned above
  • 24. Offences and Prosecution 24 Amount of Tax Evaded or ITC wrongly availed or utilised or Refund wrongly taken Period of Maximum Imprisonment and Fine Exceeding Rs. 500 Lacs 5 years and Fine Exceeding Rs. 200 Lacs up to Rs. 500 Lacs 3 years and Fine Exceeding Rs. 100 Lacs up to Rs. 200 Lacs 1 year and Fine Commits/ abets certain specified offences 6 months or Fine or both In case of repetition of Offence 5 years and Fine Offences relating to evasion where the amount is more than Rs. 500 Lacs, are cognizable and non-bailable Min 6 months
  • 25. Power to arrest – Sec 69 25 • Where the Commissioner has reasons to believe that the person has committed certain specified offences which are liable to prosecution and • Where the amount of evasion is > Rs. 2 Cr, or • Where any offence liable for prosecution has been committed again he may, by Order, authorise any officer to arrest such person. • Where the arrest has been made and • where the amount of tax evasion is > Rs. 5 Cr., the officer authorised to arrest the person shall inform such person of the grounds of arrest and produce him before a Magistrate within 24 hours. • in other cases, bail shall be admitted or in default of bail, the person shall be forwarded to the custody of the Magistrate. • In case of a non-cognizable and bailable offence, the Deputy Commissioner or the Assistant Commissioner shall, for the purpose of releasing an arrested person on bail or otherwise, have the same powers and be subject to the same provisions as an officer-in-charge of a police station.
  • 26. Ground Rules 26 • A person shall not be prosecuted for any offence except with the previous sanction of the Commissioner. [Sec 132(6) of CGST Act] • Prior sanction of the Commissioner is required for the Courts to take cognizance of any offence punishable under the Act. No Court inferior to that of a Magistrate of the First Class shall try any such offence under the Act. [Sec 134 of CGST Act] • Obligation cast on the accused to prove the absence of mens-rea, else its implied that offence has been committed intentionally and with guilty mind. [Sec 135 of CGST Act] • U/s 136 of CGST Act, a statement recorded during the course of investigation or enquiry shall be relevant to prove the truthfulness of the facts when, • the person who made the statement is not available during proceedings due to death, unavailability, incapacity, kept out of way, presence can’t be obtained without unreasonable delay. • the person is examined as a witness before the Court and the Court admits such statement as evidence in the interest of justice.
  • 27. Ground Rules – Sec 137 27 • Where an offence has been committed by a company, every person who, at the time the offence was committed, was in charge of and was responsible to, the company for the conduct of business of the company, as well as the company, shall be deemed to be guilty of the offence and shall be liable to be proceeded against and punished accordingly. • If it is proved that the offence has been committed with the consent or connivance of, or is attributable to any negligence on the part of, • In case of Company, the Person-in-charge such as Director, Secretary, Manager etc., they shall be considered guilty and shall be liable for punishment along with Company • In case of Partnership Firm or LLP, HUF or Trust, Partner of Firm or LLP/ Karta of Family/ Managing Trustee of the Trust shall be deemed to be guilty. • If the person proves that the offence was committed without his knowledge or that he had exercised suitable precautions and all exercised due diligence to prevent such offence, no punishment can be rendered to him.
  • 28. Offences and Prosecution 28 • U/s 133(1) of CGST Act, any person engaged in collection of statistics or any officer having access to information or person engaged in connection with services on the common portal wilfully discloses any information, otherwise than in execution of his duties, shall be be prosecuted. • Penalty – Fine up to Rs. 25,000 or 6 months imprisonment or both • Prosecution proceedings can be initiated in case • A Government servant, with the previous sanction of the Government • Not a Government servant, with the previous sanction of the Commissioner
  • 29. Compounding of offence 29 • Can be initiated either before or after institution of prosecution [Sec 138(1) of CGST Act] • Exclusions • Person who has been allowed to compound once in respect of certain specified offences which were liable for prosecution (mostly offences relating to supplies, ITC, Refund or falsifying docs) • Person who has been allowed to compound once in respect of any offence (except certain specified offences liable for prosecution) in respect of supplies of value exceeding Rs. 1 Cr. • Person who has been accused of committing an offence under this Act which is also an offence under any other law for the time being in force • Person convicted for an offence under this Act by a Court • Person who has been accused of committing certain specified offence (other than those having monetary implications) which are liable for prosecution • Any other person or offence, as may be prescribed
  • 30. Compounding of offence 30 • U/s 138(2) of CGST Act, Compounding amount shall be as prescribed, subject to • Minimum – Rs. 10,000 or 50% of tax involved, whichever is higher • Maximum – Rs. 30,000 or 150% of tax, whichever is higher • Compounding shall be allowed only after making payment of tax, interest, and penalty [2nd proviso to Sec 138(1) of CGST Act] • Compounding allowed under this Act shall not affect the proceedings, if any, instituted under any other law. [1st proviso to Sec 138(1) of CGST Act] • Once compounding amount paid, no further proceedings can be initiated. If already initiated, the proceeding shall stand abated [Sec 138(3) of CGST Act] Form GST CPD-01 Application by the Person to the Commissioner Form GST CPD-02 Acceptance/ Rejection Order within 90 days Closure Compounding Fee to be paid within 30 days else Order void
  • 31. Thank You Manmohan Daga Daga & Associates 9804199500 mmdaga@hotmail.com
  • 32. Finance Act 2021 32 Section Provision of Law Current Proposed Remarks Expl 1(ii) of Sec 74 Demand and recovery provisions If notice issued and proceedings concluded u/s 73 or u/s 74, the proceedings against all the persons liable to pay penalty u/s 122, 125, 129 and 130 are deemed to be concluded. If notice issued and proceedings concluded u/s 73 or u/s 74, the proceedings against all the persons liable to pay penalty u/s 122 and 125 are deemed to be concluded. Detention, seizure and confiscation provisions separated from the Demand and Recovery provisions 129(1)(a) Penalty in case of detention of goods and conveyance (in case the owner comes forward) Tax and Penalty equal to 100% of tax payable Penalty equal to 200% of tax payable 129(1)(b) Penalty in case of detention of goods and conveyance (in case the owner doesn't comes forward) Tax and penalty equal to 50% of value of goods Penalty shall be higher of a) 50% of the value of goods b) 200% of the tax payable 129(2) Execution of Bond and Furnishing of security for release of goods and conveyance so detained or seized The goods seized shall be released, on a provisional basis, upon execution of a bond and furnishing of a security Omitted For provisionally releasing goods, the requirement of executing bond removed. Now, for release, security will have to be furnished 129(3) Notice by Proper Officer detaining the goods and conveyance and Order thereof The proper officer detaining or seizing goods or conveyances shall issue a notice specifying the tax and penalty payable and thereafter, pass an order for payment of tax and penalty The proper officer detaining or seizing goods or conveyance shall issue a notice within 7 days of such detention or seizure, specifying the penalty payable, and thereafter, pass an order within a period of 7 days from the date of service of such notice, for payment of penalty The law now prescribes a time limit for issuance of notice and passing the order of detention or seizure 1. Only the penalty amount needs to be paid in order to secure release of goods. Tax amount to be paid through GSTR-3B 2. Penalty amount in case of Sec 129(1)(b) modified
  • 33. Finance Act 2021 33 Section Provision of Law Current Proposed Remarks 129(4) Person concerned to be given an opportunity of being heard No tax, interest or penalty shall be determined without giving the person concerned an opportunity of being heard No penalty shall be determined without giving the person concerned an opportunity of being heard Procedural, since tax and interest are now to be paid through GSTR- 3B 129(6) In case of failure to pay penalty, provisions relating to confiscation to be initiated If the person transporting any goods or the owner of the goods fails to pay the amount of tax and penalty within 14 days, provisions of confiscation shall be initiated If the person transporting any goods or the owner of such goods fails to pay the amount of penalty within 15 days from the date of receipt of the copy of the order, the goods or conveyance so detained or seized shall be liable to be sold or disposed of. Provided that the conveyance shall be released on payment by the transporter of penalty as determined or Rs. 1 Lac, whichever is less. Earlier, in case of non payment, the goods and conveyance was liable to be confiscated. Now, the provision is to directly sell or dispose off the same. The transporter has been given an option to get his conveyance released on payment of penalty
  • 34. Finance Act 2021 34 Section Provision of Law Current Proposed Remarks 130(1) Notwithstanding anything contained in this Act, if any person…... Where any person…..... The confiscation provision no longer overrides any other provision of the Act 2nd proviso to Sec 130(2) Aggregate of fine and penalty leviable shall not be less than the amount of penalty leviable u/s 129(1) Aggregate of fine and penalty leviable shall not be less than the penalty equal to 100% of the tax payable on such goods Proceedings of confiscation stands delinked with the penalty proceedings due to detention of goods. 130(3) Where any fine in lieu of confiscation of goods or conveyance is imposed, the owner of such goods or conveyance shall, in addition, be liable to any tax, penalty and charges payable in respect of such goods or conveyance Omitted Requirement to pay tax, penalty and charges in addition to the fine payable in respect of the goods or conveyance has been omitted 151 Power to collect statistics Commissioner to issue notification to call for any information. Once notification is issued, the person is then called to furnish such information or returns Commissioner or any authorised person, by order, may direct the person to furnish information Empowernment to the Commissioner to call for information Confiscation