Month: October 2017

The following offences may not be compounded:
(a) A person who has been allowed to compound earlier in respect of any offences described as follows:
(i) Making a supply without issue of any invoice or grossly mis-declares the
description of the supply on invoice, in contravention of this Act, to intentionally evade tax
(ii) Issues any invoice or bill without supply in violation of the provisions of this
Act/rules made thereunder leading to wrongful availment or utilization of input tax credit or refund of tax
(iii) Collects any amount as tax but fails to pay the same to the credit of the
appropriate Government beyond a period of 3 months from the date on
which such payment becomes due
(iv) Collects any tax in contravention of the provisions of this Act but fails to
pay the same to the credit of the appropriate government from the date on
which such payment becomes due
(v) Availing/utilizing input tax credit without actual receipt of goods and/or
services either fully or partially in violation of the provisions of this Act or
the rules made thereunder
(vi) Fraudulently avails input tax credit or evades tax or obtains refund
(vii) Falsification or substitution of financial records or producing fake accounts, documents or furnishes any false information with an intention to evade payment of tax
(viii) Attempts to commit or abets the commission of any of the offences
mentioned above
(b) A person who has been allowed to compound earlier in respect of any offences described as above in clause (A) under this Act or under any provisions of any other SGST Act or IGST Act in relation to supplies of value exceeding one crore rupees
(c) Any offence which is also an offence under any other law for time being in force
(d) A person who has been convicted for an offence under this act by a court
(e) A person who has been accused of committing an offence as under:
(i) Obstruct or prevents any officer in the discharge of his duties
(ii) Tampers with or destroys any material evidence or documents
(iii) Fails to supply any information which he is required to supply under this
Act or the rules made thereunder or (unless with a reasonable belief, the
burden of proving which shall be upon him, that the information supplied by
him is true) supplies false information.

(ICAI FAQ PUBLICATIONS 06-09-2017 COMPOUNDING OF OFFENCES: FAQ NO. 43)

Any offence under this Act may, either before or after the institution of prosecution, be compounded by the Commissioner on payment, by the person accused of the offence to the Central Government or the State Government, of such compounding amount in such manner as may be prescribed. As per Rule 162 of the CGST Rules,2017 [Chapter-XIX – Offences and Penalties of the CGST Rules,2017], the application of compounding shall be filed in FORM GST-CPD-01.

(ICAI FAQ PUBLICATIONS 06-09-2017 COMPOUNDING OF OFFENCES: FAQ NO. 42)

Such person shall not be liable to any punishment.

(ICAI FAQ PUBLICATIONS 06-09-2017 OFFENCES BY COMPANIES: FAQ NO. 41)

If offences are committed by taxable person being a partnership firm or a LLP or HUF or a trust, the partner or Karta or managing trustee respectively shall deemed to be guilty of offence and shall be liable to be proceeded against and punished accordingly. Further, If offences are committed by partnership firm or a LLP or HUF or a trust and 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, the partner or Karta or managing trustee respectively, then such partner or Karta or managing trustee shall also be deemed to be guilty of that offence and shall be liable to be proceeded against and punished accordingly.

(ICAI FAQ PUBLICATIONS 06-09-2017 OFFENCES BY COMPANIES: FAQ NO. 40)

If an offence under the Act has been committed by a Company and 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, any director, manager, secretary or other officers of the Company, then such director, manager, secretary or other officers of the Company shall also be deemed to be guilty of that offence and shall be liable to be proceeded against and punished accordingly.

(ICAI FAQ PUBLICATIONS 06-09-2017 OFFENCES BY COMPANIES: FAQ NO.  39)

When an offence is committed by a Company, every person who at the time of offence was committed was in charge of or 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 prosecuted against and punished accordingly.

(ICAI FAQ PUBLICATIONS 06-09-2017 OFFENCES BY COMPANIES: FAQ NO. 38)

A statement made and signed by a person on appearance in response to any summons issued under section 70 during the course of any inquiry or proceedings under this Act shall be relevant, for the purpose of proving, in any prosecution for an offence under this Act, the truth of the facts which it contains-
(a) when the person who made the statement is dead or cannot be found, or is
incapable of giving evidence, or is kept out of the way by the adverse party, or
whose presence cannot be obtained without an amount of delay or expense which, under the circumstances of the case, the Court considers unreasonable; or
(b) when the person who made the statement is examined as a witness in the case before the Court and the Court is of the opinion that, having regard to the
circumstances of the case, the statement should be admitted in evidence in the interests of justice

(ICAI FAQ PUBLICATIONS 06-09-2017 Cognizance of offences, Presumption of culpable mental state and Relevancy of statements under certain circumstances: FAQ NO. 37)

A fact is said to be proved only when the Court believes it to exist beyond reasonable doubt and not merely when its existence is established by a preponderance of probability

(ICAI FAQ PUBLICATIONS 06-09-2017 Cognizance of offences, Presumption of culpable mental state and Relevancy of statements under certain circumstances: FAQ NO. 36)

Culpable mental state includes
(a) Intention
(b) Motive
(c) Knowledge of the fact
(d) Belief in or reason to believe a fact

(ICAI FAQ PUBLICATIONS 06-09-2017 Cognizance of offences, Presumption of culpable mental state and Relevancy of statements under certain circumstances: FAQ NO. 35)

Yes. In any prosecution for an offence under this Act which requires a culpable mental state on the part of the accused, the Court shall presume the existence of culpable mental state but it shall be a defence for the accused to prove the fact that he had no such mental state with respect to the act charged as an offence in that prosecution.

(ICAI FAQ PUBLICATIONS 06-09-2017 Cognizance of offences, Presumption of culpable mental state and Relevancy of statements under certain circumstances: FAQ NO. 34)