Under the CGST Act, 2017, the power to conduct a 'best judgment assessment' is strictly limited to specific provisions like Sections 62 and 63. A proper officer has no jurisdiction to resort to best judgment assessment or data extrapolation while passing orders under Section 74, as this power is not expressly conferred.

COMMON ORDER

Heard both sides.

2. The writ petitioners are wholesale dealers engaged in the supply of groceries and Fast Moving Consumer Goods items. The respondents received information that the writ petitioners / assessees have been grossly under-reporting their sales turnover in the GST returns. Search operations were conducted. The computer systems used for billing and the documents containing sales data were seized from the premises vide mahazar dated 11.05.2023. Statements of the manager, accountant, software supplier, customers etc., were recorded under Section 70 of CGST Act. The proprietors were arrested. Show cause notices dated 29.06.2024 under Section 74 of the CGST Act were issued proposing tax demand for different financial years together with penalty and interest.

3. The writ petitioners submitted their replies. Enquiry was held. Since the respondents relied on the data retrieved by a private agency (FDI Labs), the writ petitioners sought leave to cross examine the person who retrieved the data. This request was rejected. Questioning the same, the petitioners filed WP(MD)Nos.1053 to 1056 of 2025. Since during the pendency of the writ petitions, the impugned final orders came to be passed, they were dismissed as infructuous. Challenging the final assessment orders, these writ petitions have been filed.

4. The learned counsel appearing for the petitioners reiterated all the contentions set out in the affidavit filed in support of these writ petitions and called upon this Court to set aside the impugned orders and grant relief as prayed for.

5. The respondents have filed counter affidavits and the learned standing counsel took me through its contents. My attention was drawn to the statements of the writ petitioners recorded under Section 70 of the Act. The learned standing counsel submitted that in view of the admissions made by the assessees in the said statements, no relief deserves to be granted to them. He added that the writ petitions are not maintainable since the appeal remedy has not been exhausted. He pressed for dismissal of the writ petitions.

6. I carefully considered the rival contentions and went through the materials on record. The following issues arise for determination :

a) Whether rejection of the request to cross-examine the persons who retrieved the data amounts to violation of the principles of natural justice and whether the impugned final orders stand vitiated on that ground?

b) Whether the respondents were justified in resorting to best judgement assessment ?

7. The learned standing counsel for the respondent submitted that in view of the dismissal of WP(MD)Nos.1053 to 1056 of 2025 filed by the petitioners, the first point need not be taken up for determination. I cannot sustain this objection. It is true that the order rejecting the request for cross examination was made during the pendency of the assessment proceedings. It is akin to an intermediate order. I refrain from calling it an interlocutory order since it has a bearing on the rights of the assessee. If the assessee did not mount a challenge to the rejection order which was passed during the pendency of the proceedings, it can be made as one of the grounds of attack while assailing the final order. In Kores (India) Ltd. v. Bank of Maharashtra (2009) 17 SCC 674, it was held that a litigant is not bound to appeal against every interlocutory order passed against him ; he can wait until the final order is passed and in appeal against that final order, challenge all orders leading to the final order and affecting that decision. This principle enunciated in the context of civil proceedings can equally be applie