TMI Blog2023 (4) TMI 545X X X X Extracts X X X X X X X X Extracts X X X X ..... filed is conferred upon the proper officer in terms of Section 61 of the Act. Both the said sections 61 and 67, are step towards the initiation of the proceedings either under Section 73 or Section 74 of the Act, as the case may be. They in itself do not form any basis for concluding the evasion of tax, which has to be established by following the procedure as prescribed under section 73 and under section 74 of the Act as the case may be. Section 74 from its plain reading confers the power to assess the non-payment of tax on the supply or wrong availment of input tax credit by the reasons of fraud, wilful misstatement or suppression of facts coupled with an intent to evade tax. Irrespective of the outcome of the scrutiny of return under ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d there is prima facie no material other than the SIB report to corroborate the discrepancies as allegedly found by the SIB at the time of scrutiny of returns and inspection. The impugned order dated 24.01.2022 is unsustainable and is quashed - The matter is remanded to the adjudicating authority to pass a fresh order after supplying the copy of the SIB report and giving an opportunity of hearing to the petitioner and also an opportunity of filing a reply. Petition allowed by way of remand. - Hon'ble Pankaj Bhatia, J. For the Petitioner : Aloke Kumar For the Respondent : C.S.C. ORDER HON'BLE PANKAJ BHATIA, J. 1. Both the writ petitions are common in terms of the content and relate to the same asse ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Excise 2015(7) SCC 58, I do not find any error in the appellate order dated 30.09.2022, whereby the appeal was dismissed on the ground of limitation. However, this Court is to consider the validity of the order dated 24.01.2022 on the limited grounds which are available for judicial review under Article 226 of the Constitution of India as the order dated 24.01.2022 has not merged in the order dated 30.09.2022. 6. The facts , in brief, are that the petitioner claims to be an assessee and holds a valid registration under the U.P. G.S.T. Act. It is claimed that the petitioner had uploaded the relevant documents of sale and inward supply and had claimed input tax credit in accordance with law, however, for the financial year 2017-18, an i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ent to corroborate the same by means of any evidence whatsoever. He further argues that even if for the sake of argument, it is accepted that in the survey carried out by the SIB, there was some discrepancy in the recording of the materials, it is still incumbent upon the department to establish that the Tax was not paid on the supplies effected by corroborating the same by means of some evidence either in the form of evidences by the purchaser of the said goods or otherwise. 9. He draws my attention to argue that the G.S.T. is payable on supply of goods in terms of Section 7 of the U.P. G.S.T. Act and the time of payment of the tax is governed by Section 12 and 13 of the U.P. G.S.T. Act and the valuation of the supply of goods is to be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ovided, it is stated in paragraph 28 of the counter affidavit that the petitioner never demanded the copy of the report and in any case, all important points mentioned in the report were mention in the show cause notice itself. It is further pleaded in paragraph 43 of the counter affidavit that the report was sent by the SIB on the basis of adverse facts found during the investigation by the SIB Unit and all important points in the SIB report were mentioned in the show cause notice. 12.With regard to the other contentions of the counsel for the petitioner, it has been especially stated in paragraph 42 of the counter affidavit that as the stocks found by the SIB at the time of survey were verified by the petitioner and due to variation of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... scribed under section 73 and under section 74 of the Act as the case may be. Section 74 from its plain reading confers the power to assess the non-payment of tax on the supply or wrong availment of input tax credit by the reasons of fraud, wilful misstatement or suppression of facts coupled with an intent to evade tax. Irrespective of the outcome of the scrutiny of return under section 61 of the Act or the inspection carried out under section 67 of the Act, the burden of assessing the short payment of tax or wrong availment of input tax credit still lies on the department which is to be discharged by the department. 16.To calculate and assess the non-payment of tax, it is essential that the relevant evidence is carried out by the departm ..... X X X X Extracts X X X X X X X X Extracts X X X X
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