Point of Law - Even if accept contention of petitioner that respondent ought to have proceeded under Section 62 and not under Section 73, it is at best a case of invoking a wrong legal provision instead of another, but certainly that will not make it a case of no jurisdiction, or lack of jurisdiction. Acting without jurisdiction is one thing and invoking a wrong provision while acting within jurisdiction is another thing.

ORDER :

Ujjal Bhuyan, J.

Heard Mr. P.Karthik Ramana, learned counsel for the petitioner; Mr. B.Narasimha Sharma, learned counsel for respondents 1 and 2; Mr. Krishna Swamy for the learned Assistant Solicitor General of India appearing for respondent No.3; and Sri K.Raji Reddy, learned counsel for respondents 4 and 5.

2. By filing this petition under Article 226 of the Constitution of India, petitioner has assailed legality and validity of Order-in-Original dated 28.03.2019 passed by respondent No.1 under Section 73 of the Central Goods and Services Tax Act, 2017 (briefly ‘the Act’ hereinafter).

3. From a perusal of the Order-in-Original, we find that petitioner had failed to file Goods and Service Tax (GST) returns since October, 2017 to December, 2018. After the discussions and findings recorded in paragraph No.10 of the Order-in-Original, respondent No.1 passed the following order:

a) I confirm the demand of Rs.1,54,76,440/- (rupees one crore fifty four lakhs seventy six thousand four forty only), which is the tax amount not paid during the period December, 2017 to December, 2018 as per Section 73(1) of the CGST Act, 2017 read with section 20 of IGST Act, 2017.

b) I order for recovery of Interest, at the rate of 18% under Section 50(1) of CGST Act, 2017 read with Section 20 of IGST Act, 2017 for the period from October, 2017 to December, 2018 during which the tax payment to government is delayed.

c) I impose penalty under section 122(1)(iii) read with section 127 of CGST / TGST Act, 2017 and Section 20 of IGST Act, 2017 which comes around Rupees 64,87,579/- (Sixty four lakhs eighty seven thousand five seventy nine only) as mentioned at 10(b).

d) I impose penalty of ten percent of the amount of tax amount of Rs.1,79,10,396, as mentioned at 10(a) above, under Section 73(9) of the CGST / TGST Act, 2017.

e) I impose penalty under Section 73(11) of CGST / TGST Act, 2017 read with Section 2 of IGST Act, 2017 which comes out to be Rupees 2,24,602 (Two lakhs twenty four thousand six hundred two only)

f) I order for initiation of recovery proceedings as per Section 79 read with Section 78 of CGST Act, 2017 read with Section 20 of IGST Act, 2017 if the tax amount due to the government, interest and penalty, as applicable, are not paid within one month from the date of issue of this order.

4. According to learned counsel for the petitioner, respondent No.1 ought to have proceeded under Section 62 of the Act, since it is a case of non-filing of return. Referring to Section 62, he submits that as per sub-section (1) thereof, provision of Section 62 has overriding effect over Sections 73 and 74. Notwithstanding the same, respondent No.1 erroneously assumed jurisdiction and passed the Order-in-Original under Section 73 of the Act. He submits that in terms of the Order-in-original petitioner has deposited the tax. Despite the same, Superintendent of Central Tax, Nizamabad Branch issued notice to the petitioner on 09.08.2021 calling upon the petitioner to pay the penalty of Rs.85,03,221.00 (Rupees eighty five lakhs, three thousand, two hundred and twenty one only).

5. We find that against an order passed under Section 73 of the Act, the person aggrieved has a remedy of filing appeal to the appellate authority under Section 107 of the Act. As per sub-section (1) thereof, such appeal may be filed within three months from the date of communication of the order or decision. As per subsection (4), if the appellate authority is satisfied that the appellant was prevented by sufficient cause from presenting the appeal within the aforesaid period of three months, it shall allow the appellant to present the same within a further period of one month.

6. In the instant case, the order under Section 73 was passed on 28.03.2019 and communicated since petitioner has deposited the tax in terms of the said order. Period of three months and the extended period of further one month have expired long back. It is settled law that when the statute does not provide for furth