TaxTMI 
TaxTMI 
2025 (1) TMI 519
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.... in the nature of the certiorari quashing the impugned order dated 27.02.2024 passed by the respondent no.1 in Appeal No.KNP/06/067/2019, F.Y. 2019-20 under the provisions of Section 130 of the U.P. Goods and Services Tax Act, 2017 (hereinafter referred to as UPGST Act) and Central Goods and Services Tax Act (hereinafter referred to as CGST) Annexure No.1 to the writ petition) II. Issue a suitable writ, order or direction in the nature of certiorari quashing the impugned order dated 05.04.2019 as well as the notice dated 15.12.2018 issued/passed by the respondent no.2 under Section 130 of the UPGST/CGST Act. III. ............ IV. ............." 3. Learned counsel for the petitioner submits that the petitioner i....
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....h the proceedings were initiated. 8. This Court on the various occasions has held that if the excess stock is found, the proceedings under Section 73 or 74 of the UPGST Act will come into play rather than under Section 130 of the UPGST Act read with Rule 122 of the UPGST Rule, 2017. 9. This Court in the case of S/S Dinesh Kumar Pradeep Kumar (supra) has held as under: "9. Recently, this Court in Writ Tax No. 1007 of 2022 (M/s Shree Om Steels Vs. Additional Commissioner Grade-2 and Another) along with connected cases has held in para nos. 10, 11, 12 & 13 as under:- "10. The issue in hand is covered by the judgement of this Court in Metenere Limited (supra), in which following observations have been made:- "22....
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....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) after resorting to the procedure as established under Section 74 of the Act. Section 74 of the Act reads as under: Section 74 - Determination of tax not paid or short paid or erroneously refunded or input tax credit wrongly availed or utilised by reason of fraud or any wilful misstatement or suppression of facts. (1) Where it appears to the proper officer that any tax has not been paid or short paid or erroneous....
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....oned 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 ascertained by the proper officer and inform the proper officer in writing of such payment. (6) The proper officer, on receipt of such information, shall not serve any notice under sub-section (1), in respect of the tax so paid or any penalty payable under the provisions of this Act or the rules made thereunder. (7) Where the proper officer is of the opinion that the amount paid under sub-section (5) falls short of....
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....wever, 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 Act cannot be initiated. 12. Further, in M/s Maa Mahamaya Alloys Pvt. Ltd. (supra), this Court has held as under:- "9. Considering the rival submissions made at the bar, the following questions which arise for determination; (I). Whether tax can be assessed/ determined in exercise of powers under Section 130 of the GST Act? (II). Whether penalty can be levied only on the allegations that at the time of verif....
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....ty 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 been determined and the penalty has been levied only on the basis of a survey by taking recourse under Section 130 of the GST Act and not taking a recourse to Section 74, the order impugned is clearly unsustainable. 15. On a plain reading of the allegations levelled against the petitioner with regard to the improper accounting of goods, the only stipulation contained in Clauses (ii) and (iv) of sub-section (1) of Section 130 can at best be invoked by the d....