Judicial pronouncement under section 126 of CGST Act, 2017

The experts at Legal Window have replicated the part and a recent judicial decision in this article. The latest judicial pronouncements mostly addressed E-way Bill issues when the E-way bill expired and the address was incorrectly mentioned. The courts have invoked Section 126 of the CGST Act, 2017, and, in some cases, sent the matter back to the government for further consideration. Furthermore, in this article, we have tried to make our readers understand the judicial pronouncement under section 126 of the CGST Act, 2017.

But before we shall move on to discuss the relevant judicial pronouncement let us be aware of Section 126 of the CGST Act, 2017.

Section 126 of the CGST Act, 2017

Section 126 of the CGST Act, 2017 talks about General Disciplines related to Penalty and further states that-

“No officer under this Act shall impose any penalty for minor breaches of tax regulations or procedural requirements and in particular, any omission or mistake in documentation which is easily rectifiable and made without fraudulent intent or gross negligence.”

Explanation – For the purpose of this subsection 

• A breach shall be considered a ‘minor breach’ if the amount of tax involved is less than five thousand rupees; 

• An omission or mistake in documentation shall be considered to be easily rectifiable if the same is an error apparent on the face of the record.
• The penalty imposed under this Act shall depend on the facts and circumstances of each case and shall be commensurate with the degree and severity of the breach. 
• No penalty shall be imposed on any person without giving him an opportunity of being heard. 
• The officer under this Act shall while imposing penalty in an order for a breach of any law, regulation, or procedural requirement, specify the nature of the breach and the applicable law, regulations, or procedure under which the amount of penalty for the breach has been specified. 
• When a person voluntarily discloses to an officer under this Act the circumstances of a breach of the tax law, regulation, or procedural requirement prior to the discovery of the breach by the officer under this Act, the proper officer may consider this fact as a mitigating factor when quantifying a penalty for that person. 
• The provisions of this section shall not apply in such cases where the penalty specified under this Act is either a fixed sum or expressed as a fixed percentage.

Analysis and Interpretation of Section 126 of the CGST Act, 2017

Section 126 explains “how” and “when” to impose or refrain from imposing a punishment. In certain cases, the following guiding disciplines apply to severe penalties: Interpretation and analysis No penalty can be levied if the tax involved are less than Rs.5, 000/- (small breach) or if “errors visible on the face of the record” are committed without fraudulent purpose or gross negligence. It should be noted that the Rs.5, 000/- restriction only applies to tax and does not include interest or penalties. The phrase ‘error obvious on the face of the record is not defined in the Act and must thus be interpreted in light of judicial rulings.

Let us also highlight two more crucial concepts of “Tax Mitigation and Tax Evasions” before we move further to discuss Judicial pronouncement under section 126 of CGST Act, 2017 as they play an important role regarding the same.

Concept of Tax Mitigation

In Simple words, Tax Mitigation refers to a taxpayer using a favorable provision of the tax code and following the rules in order to lower their tax burden. The hallmark of tax mitigation, on the other hand, is that the taxpayer utilizes a fiscally advantageous option made available to him by the tax legislation and genuinely experiences the economic consequences that Parliament intended to be experienced by those utilizing the option, according to Lord Nolan in CIR vs. Willoughby.

Concept of Tax Evasion

Tax evasion is against the law and entails the deliberate breach or avoidance of applicable tax regulations in order to reduce tax liability. The assessment involves contumacious behavior or real knowledge of wrongdoing and violates the pertinent legislation. This can occur when an assessed willfully omits to declare a certain item in the income tax return, willfully claims a deduction for which he is not eligible, or withholds information even though there is a requirement to do so.

It may also apply when the assessee remains silent and refuses to clarify an issue that the income tax authorities have a misunderstanding about. In certain situations, there is a component of willfulness, dishonest or disrespectful behavior, or even a lack of sincere belief. Prima facie, such behavior would fall into the realm of tax evasion if the taxpayer is unable to demonstrate that he had an honest belief that he was not subject to taxation or subject to a reduced tax.

Judicial pronouncement under section 126 of CGST Act, 2017

The following are the judicial pronouncement under section 126 of the CGST Act, 2017:

• Nirmal Kumar Mahavver Kumar vs Commissioner of Central Goods and Service Tax and Others, In this case, the claim was made against Nirmal Kumar since the e-way bill created had expired.
  Observation of the Court – While carrying out the procedure, the concerned officer will keep in mind the provisions of Section 126 of the CGST Act, 2017 which refers to omissions or errors in documents that are easily rectifiable.

• Ashok Kumar Sureka vs. Assistant Commissioner of State Tax, Durgapur Range, Calcutta High Court (2022) 7 GSTJ Online: In the present case, the court determined that the assessee’s E-way Bill had expired in less than one day and that no extension could be granted because the act was not deliberate and willful and was caused by the breakdown of the vehicle in question, and there was no intention of tax evasion on the part of the assessee. As a result, the punishment cannot be applied.

• Daya Shanker Singh vs. State of Madhya Pradesh and Others, Writ Petition No. 12324 of 2022, Madhya Pradesh High Court: In this case, the e-way bill lapsed, and the Assistant Commissioner determined that it expired on May 19, 2022, at 12 p.m. The assistant commissioner issued FORM GST MOV-02 informing the public that the E-way Bill has expired. The automobile was taken into the custody of the Dindori City Police Station.
  The Court’s Observation- The department was unable to show any element of tax evasion, illegal purpose, or negligence on the petitioner’s side. In light of this, the contested notice/order could not be issued. The Court went on to say that the notion of natural justice was statutorily recognized and embedded in this Act’s Section 126 (1) (3). While introducing subsection (1) of Section 126 into the Statute Book, lawmakers addressed the idea of proportionality. According to Section 126, sub-section (1), the punishment shall be proportionate to the violation.

Takeaway

Taking cognizance of the bare reading of Section 126 of the CGST Act, 2017 and other various judicial pronouncements under section 126 of CGST Act, 2017,  this can be concluded that the Officer in charge for dispensing such duty shall apply his mind carefully while holding a person liable for such guilty act or omission or breach of duty. Also, the reasonable mind should be applied when scrutinizing the nature of that breach.

If you want to gain more knowledge about Section 126 of the CGST Act, 2017, connect to our experts at Legal Window. in. Further, our GST Experts will guide you through all your mandatory compliance with regard to GST Compliances and other GST-related services.