On a bare reading Section 122 and 125, it is obvious that unlike Section 123 and 129, there is no mention of proper officer to levy penalty and these sections only mention penalty amount for the offences.
It is only Rule 142(1) which refers to the proper officer and provides that he shall serve, along with the notice issued section 122 or section 125, a summary thereof electronically in FORM GST DRC-01.
Reference when made to Circular No. 3/3/2017-GST, Dated 05-07-2017 also does not throw any light as there is no mention of Section 122 in that Circular. However, there are many interesting references in the circular.
The first is reference to Section 127 wherein Superintendent of Central Tax is considered as the proper officer. Can it be considered that reference to Section 127 covers Section 122 and 125 as well. This cannot be a case, because when we refer Rule 142(1), it contains reference to Section 122, Section 125 and Section 127 separately. Therefore all these sections shall be construed separately.
Also, one more interesting aspect which further makes the matter murkier, is that Circular No. 3/3/2017-GST Dated 05-07-2017 makes Superintendent of Central Tax as the proper officer for Sub-rule (1), (2), (3) and (7) of Rule 142. Now Rule 142(1) provides for issuance of notice under section 52 or section 73 or section 74 or section 74A or section 76 or section 122 or section 123 or section 124 or section 125 or section 127 or section 129 or section 130 but then interestingly there is a separate authorisation for Section 73, 74, 76, 123, 127, 129 and 130 in Circular No. 3/3/2017-GST Dated 05-07-2017.
The question still remains who is the proper officer for levy of penalty, whether
a) Since 122 and 125 does not make any reference to the proper officer unlike other sections, therefore whoever officer is seized of any of the proceedings under the Statute, he can levy penalty under Section 122 and 125 in those proceedings on being satisfied that offence leviable to penalty under those sections has been committed and interestingly, there is no monetary prescribed for this unlike for Section 73 and 74, or
b) We have to draw analogy from reference of Section 127 in Circular No 3/3/2017 Dated 05-07-2017 or
c) We have to draw analogy from reference to Rule 142(1) of CGST Rules in Circular No 3/3/2017 Dated 05-07-2017.
Interesting times ahead and what is happening at ground level, it appears option (a) is being followed and the question is whether at all it is correct.
Because by this even a Superintendent of Central Tax can levy penalty of any amount when supposedly question is of issuance of invoice without supply and since circular for monetary limit of tax applies to Section 73 and 74 and in Section 122(1)(ii) penalty is not linked to tax but input tax credit passed on irregularly.
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