Point of Law: Section 74 confers power to assess non-payment of tax by reasons of fraud, wilful misstatement or suppression of facts coupled with an intent to evade tax.

JUDGMENT :

1. Both the writ petitions are common in terms of the content and relate to the same assessee although for different years, as such, the same are being decided by means of this common order. For the sake of brevity, the facts of Writ Tax No.1570 of 2022 are being referred to.

2. Both the writ petitions have been filed challenging the 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 Article 226 of the Constitution of India, more so as the doctrine of merger would not apply as the appeal has been dismissed on the ground of limitation and not on merits.

4. On perusal of the appellate order (Annexure no.13), it is clear that the same has been dismissed as being beyond limitation prescribed under Section 104 (4) of the U.P. G.S.T. Act.

5. Considering the law which is clearly well settled by the Supreme Court in the case of M.P. Steel Corporation vs. Commissioner of Central 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 inspection was carried out by the Deputy Commissioner (SIB), Commercial Tax, Gorakhpur on 20.04.2018 and a Panchanama was prepared in pursuance to the inspection so carried out. The inspection report is on record as Annexure no.2 and 3.

7. It is argued that in terms 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 upon the said SIB report (Annexure no.9).

8. The contention of the counsel for the petitioner is that the entire proceedings initiated against the petitioner on 02.09.20221 were based upon the SIB report and without supplying a copy of the SIB report, the petitioner was not in a position to file a reply to the show cause notice. He further argues that the order dated 24.01.2022 is an ex-parte order solely based upon the SIB report and without there being any effort of the department 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, the