In Dinesh
Kumar Pradeep Kumar v. Additional Commissioner Grade-2 & Another, the
Allahabad High Court examined the legality of GST proceedings initiated solely
on the basis of alleged excess stock found during a survey conducted under
Section 67 of the UPGST Act.
The
petitioner, a registered dealer engaged in the trading of cement, mauram, and
saria, was subjected to a survey of business premises on 24 August 2018. The
inspecting authorities, relying primarily on visual estimation, concluded that
excess stock was available at the premises and proceeded to confiscate the
goods. Subsequently, an ex-parte order was passed against the petitioner, which
was affirmed in appeal by the Additional Commissioner.
The
petitioner challenged the appellate order, contending that even if excess stock
was assumed to exist, the statutory scheme of the GST law mandates that
proceedings for determination of tax liability must be initiated only under Sections
73 or 74 of the UPGST Act, and not under Section 130, which deals
with confiscation. It was further argued that confiscation proceedings are
impermissible against a registered dealer in the absence of intent to evade
tax, particularly when the alleged excess stock was identified prior to the
stage of supply.
The High
Court noted that the issue was no longer res integra and stood conclusively
settled by earlier decisions, including M/s Shree Om Steels v. Additional
Commissioner Grade-2 and Metenere Limited v. State of U.P. The Court
reiterated that Section 35(6) of the Act permits the authorities to treat
unaccounted goods as deemed supplies, but the quantification of tax and
imposition of penalty must strictly follow the procedure prescribed under
Sections 73 or 74.
It was
further observed that confiscation under Section 130 cannot be resorted to
merely on the allegation of excess stock, particularly when there is no
established finding of supply or intent to evade tax. The Court also
disapproved the practice of determining stock value based solely on eye
estimation, holding such an approach to be legally unsustainable.
In view
of the settled legal position, the High Court held that the impugned appellate
order could not be sustained in law. Consequently, the order dated 24 March
2022 was set aside, and the writ petition was allowed.
This
judgment reinforces the principle that GST authorities must adhere to the
statutory framework for tax determination and cannot invoke confiscatory
provisions in a routine or mechanical manner, especially against registered
dealers, without following due process of law.
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