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TMI Blog2023 (4) TMI 545X X X X Extracts X X X X X X X X Extracts X X X X ..... order dated 24.01.2022 passed in exercise of the power under Section 74 of the U.P. G.S.T. Act against the petitioner as well as the order dated 30.09.2022 passed by the first appellate authority whereby the appeal was dismissed as beyond limitation. 3. The contention of the counsel for the petitioner is that the appellate authority has erred in dismissing the delay condonation application, however he argues that in the event, this Court finds that the appellate court had rightly dismissed the application for extension of period of limitation, this Court should hear the matter in respect of challenge to the order dated 24.01.2022 on the grounds which are available for challenge of a quasi judicial order in exercise of the power under Arti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rms of the said search and seizure, summons were issued to the petitioner under section 70 of the Act on 28.04.2018, the petitioner appeared in pursuance to the said summons and also filed a reply. Subsequently, after about three years on 02.09.2021, the petitioner was served with a show cause notice under section 74 of the U.P.G.S.T. Act on the basis of the SIB survey report. The said show cause notice is on record as Annexure no.8. Along with the said show cause notice, no relied upon documents were mentioned and the petitioner was not even supplied with a copy of the SIB report. The petitioner asked for adjournment and was waiting for the supply of the SIB report, however, an ex-parte order came to be passed on 24.01.2022 solely based up ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to the assessee and any non-compliance thereof would render the order bad in law and also in violation of principle of natural justice. He lastly argues that improper returns only give the right to the department to initiate the proceedings under section 74 of the Act, in the light of section 61(3) of the U.P. G.S.T. Act. He also argues that in any event, no right of hearing was accorded to the petitioner which is a mandatory requirement under section 75(4) of the U.P.G.S.T. Act. Specific allegation with regard to non-supply of the SIB report has been made in paragraph 19, 36 and 38 of the Writ Petition. 10.Standing counsel, on the other hand, justifies the order dated 24.01.2022 by arguing that the SIB had found certain discrepancies in t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... prepared the report on the basis of the verification and not on the basis of eye estimation and thus, on the said foundation, the demand has been created as per the Rules. 13.It is also pleaded that the petitioner was provided with several reasonable opportunities for hearing but no explanation was submitted, as such, an ex-parte order was passed. 14.In the light of the pleadings as referred above, what emerges is that an ex-parte order came to be passed against the petitioner on 24.01.2022, the foundation for passing the said order is the SIB report alone. No opportunity of hearing appears to have been granted to the petitioner nor is the same mentioned in the order dated 24.01.2022. 15.In terms of the scheme of the Act, the power of s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lleged that the tax has either not been paid or short paid or short levied. In addition to the said, the burden is on the department to establish that the said non-payment was on account of fraud, wilful misstatement or suppression of facts. Mere report of inspection and discrepancy in the scrutiny of returns is not enough to assess and levy the tax, the said discrepancies, even if noticed by the department should be corroborated with materials in the form of either the evidence or in any other form as the department may deem fit. Without any corroborative material, merely on the basis of discrepancies found in the scrutiny of returns or discrepancies found during the inspection is not enough to assess the tax. 17.It is also incumbent upon ..... X X X X Extracts X X X X X X X X Extracts X X X X
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