TaxTMI 
TaxTMI 
2024 (7) TMI 1205
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....Year 2020- 21, Writ Tax No. 1101 of 2022 relates to Assessment Year 2019- 20 and Writ Tax No. 1410 of 2022 relates to Assessment Year 2019-20. Since the issues involved in these writ petitions are similar, therefore, the same are being decided by the common order. Writ Tax No. 1007 of 2022 is taken as a leading case for deciding the controversy involved in these writ petitions. Writ Tax No. 1007 of 2022 3. The present writ petition has been filed challenging the impugned order dated 24.03.2022 passed by the Additional Commissioner, Grade - 2 (Appeal), Commercial Tax, Etawah in Appeal No. GST - 0044/2021 under section 130 of the UPGST Act for the assessment year 2020-21 as well as the impugned order 20.11.2020 passed by the Assistant C....
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....stered dealer. 6. In support of his submissions, he has placed reliance on the judgements of this Court in M/s Maa Mahamaya Alloys Pvt. Ltd. Vs. State of U.P. & 3 Others [Writ Tax No. 31/2021, decided on 23.03.2023] and Metenere Limited Vs. Union of India & Another [2020 NTN (74) 574]. He prays for allowing the writ petitions. 7. Per contra, learned ACSC supports the impugned orders and submits that the petitioner is indulged in mal practice as it is evident from the survey that excess stocks were found without proper entry in the books of account. As excess stock has been noticed, therefore, the proceedings under section 130, read with section 122 of the UPGST Act were rightly initiated against the petitioner. He prays for dismissal ....
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....n 1 of Section 35, the proper officer is empowered to determine the amount of tax payable on the goods or the service which are unaccounted for as if such goods or services had been supplied by such person and the provisions of Section 73 or 74 shall mutatis mutandis apply for determination of the said tax. 25. A perusal of the said section 35(6) makes it clear that proper officer is empowered to determine the taxes payable and while determining the said tax payable he is bound to determine the same in accordance with the provisions of Sections 73 & 74 of the Act. 26. In the present case, the proper officer was empowered to determine the liability of payment of tax in terms of the powers conferred under Section 35 (6) afte....
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...., on the person chargeable with tax. (4) The service of statement under sub-section (3) shall be deemed to be service of notice under sub-section (1) of section 73, subject to the condition that the grounds relied upon in the said statement, except the ground of fraud, or any wilful-misstatement or suppression of facts to evade tax, for periods other than those covered under sub-section (1) are the same as are mentioned in the earlier notice. (5) The person chargeable with tax may, before service of notice under sub-section (1), pay the amount of tax along with interest payable under section 50 and a penalty equivalent to fifteen per cent. of such tax on the basis of his own ascertainment of such tax or the tax as ascertai....
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....rson served with an order issued under sub-section (9) pays the tax along with interest payable thereon under section 50 and a penalty equivalent to fifty per cent. of such tax within thirty days of communication of the order, all proceedings in respect of the said notice shall be deemed to be concluded. 27. Although in terms of the provisions of Section 35 (6), the unaccounted goods are ''deemed to be supplied' however, determination and quantification of the tax on the said ''deemed supply' has to be done in accordance with Section 73 or Section 74of the Act.." 11. In the aforesaid case, this Court has specifically held that even if excess stock is found, the proceedings under section 130 of the UPGST A....
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....35, the penalty that can be imposed is Rs. 10,000/- only. This Court also held that the demand for tax can be quantified and raised only in the manner prescribed in Section 73 or Section 74 of the Act, as the case may be. 12. In the light of what has been decided by this Court in the case of M/s Metenere Limited (Supra), it is clear that the entire exercise resorted to under Section 130 of the GST Act for assessment/ determination of the tax and the penalty is neither stipulated under the Act, nor can be done in the manner in which it has been done, more so, in view of the fact that the department itself had undertaken the exercise of quantifying the tax due, by taking recourse under Section 74. 13. As the entire tax has b....