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2020 Supreme(All) 863
IN THE HIGH COURT OF ALLAHABAD
SURYA PRAKASH KESARWANI, YOGENDRA KUMAR SRIVASTAVA, JJ.
M/S Libra International Limited - Appellant
Versus
Assistant Commissioner Commercial Tax And Another - Respondents
Writ Tax No. 665 of 2020
Decided on : 02-12-2020
Advocate Appeared:
For the Appellant : Suyash Agarwal
Point of Law: Where the registering authority grants or refuses to grant the no objection certificate, it shall return the duplicate copy of the said Form to the applicant and the triplicate copy to the other registering authority after duly filling and signing Part II thereof.
59. Change in residence.-An application for recording a change in the residence in the certificate of registration of a motor vehicle shall be made by the owner of the vehicle in Form 33 accompanied by the certificate of registration and proof of address in the manner specified in rule 4 and the appropriate fee as specified in rule 81
Headnote:
Uttar Pradesh Goods and Services Tax Act, 2017 – Sections 129, 138 – Penalty – Tax – Writ petition has been filed praying for reliefs issue a writ, order or direction in the nature of Certiorari quashing the order passed by Respondent no.1 u/s 129(3) of the UPGST Act – Issue a writ, order or direction in nature of certiorari quashing GST DRC-07 dated 18.9.2020 (Annexure9) – Issue any other writ, order or direction in favour of the petitioner which this Hon'ble Court deems fit in the facts and circumstances of the case. – Award cost of the petition to the petitioner – Petitioner claims to have deposited the amount of tax and penalty vide demand draft and despite the same, an order in FORM GST DRC-07 has been received by the petitioner showing the details of demand in respect of tax and penalty determined under Section 129 of the Act, 2017. – Learned counsel for the petitioner submits that left with no other remedy, the present writ petition has been filed. –
Finding of the Court:
Combined reading of sub-rules (5), (6) and (7) of Rule 142 of the Rules, 2017, indicate that a mechanism is provided for uploading summary of certain specified orders, including the order issued under Section 129 in FORM GST DRC-07, specifying therein the amount of tax, interest and penalty payable by the person chargeable with tax – In the event the order aforementioned has been rectified or withdrawn, a summary of the rectification order was of the withdrawal order is uploaded electronically by the proper officer in FORM GST DRC08. – Court may take note of the fact that implementation of the GST regime has brought about a major reform in the field of indirect taxation and all key aspects starting from registration till filing of the return, raising of eway bill, filing of the refund claim, passing of an order creating demand of tax and penalty, rectification of the order, etc. are dependant on a technology driven process with regard to which the necessary procedure is provided under the Rules. – Challenge sought to be raised to the order passed under Section 129 (3) of the Act, 2017, having been made at a belated stage, Court is of the view that the relief claimed in this regard in terms of relief clause (I), would be barred by laches; moreso, in the light of the fact that the petitioner claims to have deposited the entire amount of tax and penalty determined under the said order, and by virtue of the deeming provision under subsection (5) all proceedings in respect of the notice specified under subsection (3) shall be deemed to be concluded. – As regards the prayer for quashing the summary of the order uploaded electronically in FORM GST DRC-07 as under relief clause (II), court may observe that in the event the petitioner has actually made payment of the entire amount due towards tax and penalty referred to in the notice issued under subsection (1) of Section 129, he may submit proof thereof before the authority concerned and apply for rectification/withdrawal of the said order. –
Result: Writ Petition Dismissed
JUDGMENT :
1. Heard Sri Suyash Agarwal, learned counsel for the petitioner and Sri C.B. Tripathi, learned Special Counsel for respondent no.1.
2. This writ petition has been filed praying for following reliefs :
"I. Issue a writ, order or direction in the nature of Certiorari quashing the order no.731 dated 15.2.2018 passed by Respondent no.1 u/s 129(3) of the UPGST Act (Annexure No. 6)
II Issue a writ, order or direction in nature of certiorari quashing GST DRC-07 dated 18.9.2020 (Annexure9)
III. Issue any other writ, order or direction in favour of the petitioner which this Hon'ble Court deems fit in the facts and circumstances of the case.
IV. Award cost of the petition to the petitioner."
3. Pleadings of the writ petition indicate that the goods and vehicle of the petitioner were intercepted on 11.2.2018 on the ground that the goods in question were being transported without E-Way Bill and a notice under Section 129(3) of the Uttar Pradesh Goods and Services Tax Act, 2017 (hereinafter referred to as "the Act, 2017") was issued specifying the tax and penalty payable. Thereafter, an order for payment of tax of Rs.1,01,844/and equivalent amount of penalty, total Rs. 2,03,688/, was passed under Section 129(3) of the Act, 2017.
4. The petitioner claims to have deposited the amount of tax and penalty vide demand draft dated 14.2.2018 and despite the same, an order in FORM GST DRC-07 dated 18.9.2020 has been received by the petitioner showing the details of demand in respect of tax and penalty determined under Section 129 of the Act, 2017. Learned counsel for the petitioner submits that left with no other remedy, the present writ petition has been filed.
5. Learned counsel appearing for respondent no.1 submits that the order dated 15.2.2018 passed under Section 129(3) of the Act, 2017, has attained finality and the same cannot be assailed at this stage. He further submits that the writ petition is barred by laches and is not liable to be entertained for this reason. Further, submission is made that since the petitioner claims to have deposited the entire amount of interest and penalty by means of a demand draft dated 14.2.2020, in view of the provisions contained under subsection (5) of Section 138 of the Act, 2017, all proceedings in respect of the notice under Section 129(3) shall be deemed to be concluded.
6. Learned counsel for the State respondent submits that in the event the petitioner has actually deposited the amount towards tax and penalty determined in terms of the order dated 15.2.2018 under Section 129(3) of the Act, 2017, he may apply for a rectification of the order uploaded in FORM GST DRC-07 alongwith proof of having made the payment pursuant to the demand pertaining to tax and penalty.
7. Heard learned counsel for the parties and perused the record.
8. In order to appreciate the contention of the parties, the relevant statutory provision under Section 129 of the Act, 2017, which provides for detention, seizure and release of goods and conveyances in transit may be referred to. Section 129 reads as follows :
"129. Detention, seizure and release of goods and conveyances in transit.--(1) Notwithstanding anything contained in this Act, where any person transports any goods or stores any goods while they are in transit in contravention of the provisions of this Act or the rules made thereunder, all such goods and conveyance used as a means of transport for carrying the said goods and documents relating to such goods and conveyance shall be liable to detention or seizure and after detention or seizure, shall be released, --
(a) on payment of the applicable tax and penalty equal to one hundred per cent of the tax payable on such goods and, in case of exempted goods, on payment of an amount equal to two per cent. of the value of goods or twenty-five thousand rupees, whichever is less, where the owner of the goods comes forward for payment of such tax and penalty;
(b) on payment of the applicable tax and penalty equal to the fifty per
