9911796707
TMI Blog2023 (4) TMI 497X X X X Extracts X X X X X X X X Extracts X X X X ..... the tax is to be levied flows from Section 15 of the Act, which mandates the manner in which the value of the taxable supply is to be done. Chapter IX of the said Act prescribes for filing of the returns by the assessee and Chapter X mandates the payment of tax, interest, penalty and other amounts on the basis of the returns filed as prescribed under Chapter IX of the said Act. Chapter XIV of the Act confers the power on the authorized officers with regard to the inspection, search, seizure and arrest and Chapter XV prescribes for demands and recovery in respect of the tax not paid or short paid or erroneously refunded or input tax credit wrongly availed - It is clear in the present case that department has taken recourse to Section 74 for ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... umar For the Respondent : C.S.C. ORDER HON'BLE PANKAJ BHATIA,J. 1. Both the said writ petitions arise out of the similar proceedings against the petitioner, although in respect of the different financial years. 2. For the sake of brevity, the facts of Writ Tax No.4 of 2022 are being recorded. 3. By means of the said writ petition, the petitioner challenges the order dated 03.06.2021 passed by the respondent no.3 as well as the order in appeal dated 13.07.2021 preferred against the order dated 03.06.2021. 4. The facts in brief are that the petitioner is a partnership concern and is duly registered with the GST Department. The petitioner claims that all the inwards and outwards supply was duly reflected on th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e of personal hearing was not disclosed as is clear from the perusal of the notice (Annexure-7). Alongwith the said show cause notice, the petitioner was also supplied with the summary of show cause notice dated 08.01.2021 in the form of GST DRC-01 (Annexure-8). 7. It is argued that in the show cause notice, in the column indicating the brief fact of the case Adverse material found in SIB was mentioned and in the column of grounds for issuance of the show cause notice, it was again mentioned that Adverse material found in SIB . The petitioner further argues that yet another notice was issued calling upon the petitioner to submit reply by 24.12.2020. In the said notice also, the report of the SIB was mentioned. It is argued that in all ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , quantified the tax and penalty at Rs.9,30,969.60/-. The said order is under challenge before this Court as the Appellate Tribunal has not yet been constituted. 8. The contention of the Counsel for the petitioner Sri Aloke Kumar is that for invoking the powers under Section 74, it is essential that all the documents proposed to be relied upon should be provided, which has not been done in the present case. He further argues that in terms of the mandate of Section 74, it is essential that the demand of tax be quantified after considering the supply of goods, the time and value of supply and after recording that the petitioner did not pay the tax, which he was required to pay. He further argues that from the perusal of the order of the ad ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ct. The value on which the tax is to be levied flows from Section 15 of the Act, which mandates the manner in which the value of the taxable supply is to be done. Chapter IX of the said Act prescribes for filing of the returns by the assessee and Chapter X mandates the payment of tax, interest, penalty and other amounts on the basis of the returns filed as prescribed under Chapter IX of the said Act. Chapter XIV of the Act confers the power on the authorized officers with regard to the inspection, search, seizure and arrest and Chapter XV prescribes for demands and recovery in respect of the tax not paid or short paid or erroneously refunded or input tax credit wrongly availed. The distinction between assessment under Sections 73 and 74 is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aid manner of adjudication adopted by the respondents department can at best be termed as best judgment assessment which can be resorted to only under Section 62 and that too only in respect of the persons who have not filed the returns. In respect of the persons who have filed returns, Section 61(3) is very clear under which the department is duly empowered to take action under Sections 73 or 74, in case the returns furnished contain discrepancies and the assessee fails to take corrective measures in respect of the said discrepancies. 15. For taking recourse to Section 74, it is essential that along with search and seizure report, certain specific averment is made with regard to the supply of goods and the non-payment of tax coupled wit ..... X X X X Extracts X X X X X X X X Extracts X X X X
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