# M/s A.V. Pharma v. State of U.P. & Ors

- **Citation:** (2024) 11 ILRA 102
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2024-11-12
- **Case number:** Writ Tax No. 264 of 2024
- **Bench:** Rajan Roy, Manish Kumar
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/m-s-a-v-pharma-v-state-of-u-p-ors-54651
- **Pages:** 4

## Headnote

Tax Law - U.P.G.S.T. Act, 2017 - Sections
44(1) & 73(10) - Quashing of assessment
order - Financial year 2017-18 - Due date
for
filing
annual
return
was
31st
December of end of Financial Year i.e
31.12.2018 for financial year 2017-18,
due date for filing annual return extended
vide notification dated 03.02.2018 to
05.02.2020 and adopted by St. of U.P. vide
notification dated 05.02.2020 - Based on
this notification, period of three years
mentioned in Section 73(10) would end on
05.02.2023 meaning thereby, order u/s 73
(9) for financial year 2017-18 could have
been passed by 05.02.2023 but not after it
- Opposite parties relied on notification
dated 24.04.2023 to submit that they
could
have
passed
order
up
till
31.12.2023, they omit to consider para no.
2 of said notification which says that
notification
would
be
applicable
retrospectively but only from 31.03.2023
means if time limit of three years
prescribed in Section 73(10) r/w Section
44(1) expired prior to 31.03.2023, then
notification
extending
time
limit
for
passing order u/s 73(9) would not be
applicable. (Para 7)

Thus, impugned orders are beyond time
limit and beyond jurisdiction, accounts of
petitioner which have been freezed shall
be de-freezed. (Para 8)

Writ Petition allowed. (E-13)

## Text

102 INDIAN LAW REPORTS ALLAHABAD SERIES
or by considering material which is partly
relevant and partly irrelevant, or bases its
decision partly on conjectures, surmises
and suspicions, and partly on evidence,
then in such a situation clearly an issue of
law arise....

.....It is well established that when
a court of fact acts on material, partly
relevant and partly irrelevant, it is
impossible to say to what extent the mind of
the court was affected by the irrelevant
material used by it in arriving at its finding.
Such a finding is vitiated because of the use
of inadmissible material and thereby an
issue of law arises,"

16. In CIT v. Daulat Ram Rawat
Mull (1973) 87 ITR 349 it has been held
that onus of proving what is apparent is not
real is on the party who claims it to be so.
There should be direct nexus between the
conclusions of fact arrived at, or inferred,
and the primary facts upon which the
conclusion is based. When irrelevant
consideration and extraneous materials
form the substratum of an order, or the
authority has proceeded in a wrong
presumption which is erroneous in law, as
in the present case, question of law arises
and when the said contention is found to be
correct, then the order is perverse. A
factual decision is perverse when it is
without any evidence or when the factual
decision, in view of the fact on record,
cannot be reasonably entertained. Finding
based upon surmises, conjectures or
suspicion or when they are not rationally
possible have to be struck down. In CIT v.
S.P. Jain (1973) 87 ITR 370 (SC) it has
been observed that a factual conclusion is
regarded as perverse when no person duly
instructed or acting judicially could upon
the record before him, have reached the
conclusion
arrived
at
by
the
tribunal/authority."

15. In light of the judgments of the
Supreme Court and High Courts cited above,
we are of the view that unless there is any
perversity in finding of facts, no substantial
question of law would arise. Furthermore, for
the Tribunal's fact finding to be perverse, it
would have be established that the finding of
fact by the Tribunal directly or indirectly
affects substantial rights of the assessee in the
sense that it is such as could not have been
reasonably arrived at on the material placed
on record before the Tribunal. In the present
factual matrix, it is crystal clear that the
Tribunal has examined the facts in great
detail, and only thereafter, held in favour of
the assessee.

16. Therefore, we do not find any
perversity in the impugned order and there
exists no reason to admit this appeal as there
is no substantial question of law involved.
The appeal filed under Section 260A of the
Act can only be sustained if there was
perversity in the findings of the Tribunal
which would have amounted to a substantial
question of law. In the present case, we do
not find anything perverse in the order passed
by the Tribunal and accordingly, dismiss the
appeal on the ground that no substantial
question of law is present in the instant
appeal.
----------
(2024) 11 ILRA 102
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 12.11.2024

BEFORE

THE HON'BLE RAJAN ROY, J.
THE HON'BLE MANISH KUMAR, J.

Writ Tax No. 264 of 2024

M/s A.V. Pharma ...Petitioner
Versus
State of U.P. & Ors. ...Respondents
11 All. M/s A.V. Pharma Vs. State of U.P. & Ors.
103
Counsel for the Petitioner:
Anuj Kudesia, Anurag Tyagi

Counsel for the Respondents:
C.S.C.

Tax Law - U.P.G.S.T. Act, 2017 - Sections
44(1) & 73(10) - Quashing of assessment
order - Financial year 2017-18 - Due date
for
filing
annual
return
was
31st
December of end of Financial Year i.e
31.12.2018 for financial year 2017-18,
due date for filing annual return extended
vide notification dated 03.02.2018 to
05.02.2020 and adopted by St. of U.P. vide
notification dated 05.02.2020 - Based on
this notification, period of three years
mentioned in Section 73(10) would end on
05.02.2023 meaning thereby, order u/s 73
(9) for financial year 2017-18 could have
been passed by 05.02.2023 but not after it
- Opposite parties relied on notification
dated 24.04.2023 to submit that they
could
have
passed
order
up
till
31.12.2023, they omit to consider para no.
2 of said notification which says that
notification
would
be
applicable
retrospectively but only from 31.03.2023
means if time limit of three years
prescribed in Section 73(10) r/w Section
44(1) expired prior to 31.03.2023, then
notification
extending
time
limit
for
passing order u/s 73(9) would not be
applicable. (Para 7)

Thus, impugned orders are beyond time
limit and beyond jurisdiction, accounts of
petitioner which have been freezed shall
be de-freezed. (Para 8)

Writ Petition allowed. (E-13)
(Delivered by Hon'ble Rajan Roy, J.
&
Hon'ble Manish Kumar, J.)

1. Supplementary affidavit on behalf
of petitioner and short counter affidavit on
behalf of State filed today are taken on
record.

2. Heard Shri Anuj Kudesia, learned
counsel for the petitioner and learned
Additional Chief Standing Counsel for the
State as also Shri Akhilesh Kumar, Deputy
Commissioner, State G.S.T., Lucknow,
who is present before this Court.

3. The present writ petition has been
filed with the following reliefs:-

"i) to issue a writ, order or
direction in the nature of Certiorari quashing
the order on Form GST DRC-13 dated
05.10.2024 issued by Deputy Commissioner,
State Tax, Sector 05, Lucknow contained as
annexure no. 1 to this writ petition.

ii) to issue a writ, order or
direction in the nature of certiorari quashing
the assessment order and DRC-07 dated
02.12.2023 issued by Deputy Commissioner,
State Tax, Sector-5, Lucknow contained as
annexure no. 2 to this writ petition.

iii) to issue a writ, order or
direction in the nature of mandamus
commanding the respondents to direct
the petitioner bank to de-freeze the two
bank accounts operated petitioners i.e.
account No. 7711564951 and Accout
No. 9946014812 in Kotak Mahindra
Bank. "

4. The contention of learned counsel
for the petitioner is that the impugned
orders are barred by sub Section 10 of
Section 73 of the U.P.G.S.T. Act, 2017
(hereinafter referred to as, the Act, 2017) as
they have been passed beyond the time
limit prescribed therein as calculated from
the due date of filing annual returns
prescribed in Section 44 (1), which was
extended to 05.02.2020 and the time limit
of three years ended on 05.02.2023 but the
impugned orders are dated 05.10.2024 and
02.12.2023, therefore, the impugned orders
are without jurisdiction.
104 INDIAN LAW REPORTS ALLAHABAD SERIES

5. After hearing the parties, what
comes out is that for justifying the time
limit within which the impugned orders
have been passed under Section 73 (9) and
(10) of the Act, 2017 for the financial year
2017-18 reliance is being placed upon a
notification dated 24.04.2023 by which the
time limit of three years mentioned in sub
Section 10 of Section 73 was extended for
the financial year 2017-18 upto 31.12.2023,
however, what is being omitted from
consideration by the opposite party is that
this notification dated 24.04.2023 has been
given
retrospective
effect
only
from
31.03.2023 and not prior to it, now, in this
context we may refer to Section 73 (10) of
the Act, 2017, which reads as under:-

"(10) The proper officer shall
issue the order under sub-section (9) within
three years from the due date for furnishing
of annual return for the financial year to
which the tax not paid or short paid or
input tax credit wrongly availed or utilised
relates to or within three years from the
date of erroneous refund."

6. We may also refer to Section 44(1)
of the Act, 2017, which reads as under:-

"44. Annual return -(1) Every
registered person, other than an Input
Service Distributor, a person paying tax
under section 51 or section 52, a casual
taxable person and a non-resident taxable
person, shall furnish an annual return for
every financial year electronically in such
form and manner as may be prescribed on
or before the thirty-first day of December
following the end of such financial year.

Provided that the Commissioner
may, on the recommendations of the
Council and for reasons to be recorded in
writing, by notification, extend the time
limit for furnishing the annual return for
such class of registered persons as may be
specified therein:

Provided
further
that
any
extension of time limit notified by the
Commissioner of Central tax shall be
deemed
to
be
notified
by
the
Commissioner."

7. Ordinarily the due date for filing
annual return is 31st December of the end
of the Financial Year, which in the case of
financial
year
2017-18
would
be
31.12.2018, however, this due date for
filing annual return, as already observed
earlier, was extended vide notification of
the Central Board of Direct Taxes and
Customs dated, 03.02.2018 to 05.02.2020
and this notification was adopted by the
State of U.P. vide notification dated
05.02.2020. Based on this notification, the
period of three years mentioned in sub
Section 10 of Section 73 would end on
05.02.2023 meaning thereby, an order under
sub Section 9 of Section 73 for the financial
year 2017-18 could have been passed by
05.02.2023 but not after it. Now the opposite
parties are relying on the notification dated
24.04.2023 to submit that in fact they could
have passed the order under sub Section 9 of
Section 73 uptill 31.12.2023 however in
doing so, they omit to consider para no. 2 of
the said notification which says that the
notification dated 24.04.2023 would be
applicable retrospectively but only from
31.03.2023 meaning thereby, if the time limit
of three years prescribed in sub Section 10 of
Section 73 read with sub Section 1 of Section
44 expired prior to 31.03.2023 then the
notification dated 24.04.2023 extending the
time limit for passing of an order under sub
Section 9 of Section 73 would not be
applicable, apparently so.

8. Apparently the impugned orders are
beyond the time limit prescribed under sub
11 All. M/s Monotech Systems Limited Vs. State of U.P. & Ors.
105
Section 10 of Section 73 as applicable for
the financial year 2017-18 and therefore the
impugned orders are beyond jurisdiction
being barred by the time provided in the
said provision, therefore, we allow the writ
petition and quash the impugned orders
dated 05.10.2024 and 02.12.2023 issued by
the Deputy Commissioner, State Tax,
Sector 05, Lucknow.

9.
Consequences
shall
follow,
accordingly. The accounts of the petitioner
which have been freezed shall be defreezed.
----------
(2024) 11 ILRA 105
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 11.11.2024

BEFORE

THE HON'BLE AJAY BHANOT, J.

Writ Tax No. 1689 of 2024

M/s Monotech Systems Limited
 ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Abhinav Mehrotra, Satya Vrata Mehrotra,
Utkarsh Malviya

Counsel for the Respondents:
C.S.C.

Tax Law - Goods and Services Tax Act,
2017 - Section 129 - Detention, seizure
and release of goods and conveyances in
transit - Against order of Additional
Commissioner - Technical breaches -
Impugned order arises out of proceedings
after interception of vehicle carrying
offending goods - Revenue authorities
upon finding that E-Way Bill was not
filled, asked assessee/petitioner to show
cause and after physical inspection of
goods no discrepancy found. (Para 2)

Contention by assessee that goods in
vehicle were fully reconciled with E-Way
Bill - Non filling of part of E-Way Bill
would not ipso facto attract proceedings
u/s 129, GST Act. (Para 4)

When substantial compliance of provisions
was disclosed and physical inspection of
goods tallies with goods declared in EWay Bill and no intent of tax evasion was
made out, proceedings under aforesaid
section became vitiated - Thus, impugned
order quashed. (Para 7)

Writ Petition allowed. (E-13)

List of Cases cited:

VSL Alloys (India) Pvt. Ltd. Vs St. of U.P. &
anr.(Writ Tax No.- 637 of 2018)
(Delivered by Hon'ble Ajay Bhanot, J.)

1. Heard Sri Abhinav Mehrotra,
learned counsel for the petitioner and Sri
Ravi Shankar Pandey, learned Additional
Chief Standing Counsel for the State
respondents.

2. The impugned order arises out of
proceedings which were instituted after
interception of the vehicle carrying the
offending goods. The revenue authorities
upon finding that the E-Way Bill was not
filled asked the assessee to show cause.
After physical inspection of the goods no
discrepancy was found.

3.
The
goods
tallied
with
the
description in the E-Way Bill.

4. The assessee on show cause resisted
the proceedings by filing a response.
According to the assessee there was no
intent to evade the tax. The goods in the