Biswanath Somadder, Yogendra Kumar Srivastava,J. - (1.) The subject matter of challenge in the instant writ proceeding is in respect of a seizure order dated 10th May, 2018, issued by the respondent no. 4, namely, the Deputy Commissioner, (Special Investigation Branch), Commercial Tax, Range-B, Aligarh, District Aligarh, whereby the goods of the writ petitioner were seized. The writ petitioner is not only challenging the seizure order dated 10th May, 2018, it is also praying for release of the seized goods.
(2.) A counter affidavit filed on behalf of the State reveals, inter alia, as follows :-- '5. That, it is to submit here that INS-01 is an Authorization letter/Order issued by the Higher Authority constituting a Team of responsible officers to conduct raid in such cases, where the Department is affirm that irregularities and theft of Tax are being committing after secret enquiry. It is also submitted that after issuance of INS-01, the constituted Team raids the suspected person/firm in the presence of witness after taking their signatures on INS-01 and after conducting the enquiry, the constituted Team pass order of seizure, which is known as INS-02. 6. That, the Answering Respondent has got confidential information from reliable sources that the Petitioner is indulged in irregularities in order to evade tax and not maintaining the Account Book/Stock Register as per norms of the UPGST Act 2017 and U.P.G.S.T. Rule, in order to get illegal profit. 7. That, upon such information, a enquiry was conducted by the Answering Respondents and when the aforesaid fact was found true, then raid was conducted after the Authorization. 10. That, the contents of Paragraph No.4 of the Writ Petition are declaratory in nature, it is submitted that the Petitioner is involved in transactions outside of UP, which is clear from return file and till date no Tran-1 has been submitted by the Petitioner. 11. That, in reply to the contents of Paragraph Nos. 5, 6 and 7 of the Writ Petition it is submitted that there was enough reason to believe that the Petitioner is indulged in the transaction out of account book and which has been clear from the return file, where opening stock, closing stock, purchase and sale are mentioned. On the basis of aforesaid data, enquiry of the place of business has been conducted and it has been found that Petitioner has shown carry forward amount of ITC of Rs.3.37 in return of June 2017 and opening stock has been shown zero, while the Petitioner has opening stock of Rs.52142/- of Agrabati, which was non taxable in VAT, while in the GST Agarbati is taxable @ 5%, which should be shown in the stock by the Petitioner, while Petitioner has shown Zero stock of the same as such, it is clear that petitioner is having malic intention and is intent to evade tax. On the basis of data in return file, the petitioner should have kept stock of Rs. 166.25 Lakh on 31-03-2018. On the basis of Data shown in the return file, there was sale of Rs. 5418768.67 for the month of April, 2018 and Rs.6034342.64 up to the 10-05-2018 and on the basis of the same, the Petitioner should have stock of Rs. 16009426.03 at the time of enquiry, but same has not been found. At the time of enquiry it as also been found that on the basis of per day sale approximate @ 2.25 Lakh, Petitioner should have stock of Rs. 13043768.67/- while at the time of enquiry, the stock of Rs. 1318264.54/- has been found at declared stock and stock of worth Rs.6266800/- have been found at undeclared godown, which was been kept by the Petitioner from the department and transactions are being carried out. If the both the stock of both declared and undeclared godown be counted at the time of enquiry, even then, same has not been verified. It is further submitted that at time of inspection, the Petitioner has shown the sale of Rs.30,000/- while he has issued invoices of Rs.10,000/- only. It is further submitted that at the time of enquiry, 3 free leaflet has been collected by the enquiry officer and no document has been submitted by the Petitioner in order to prove the same, as such it is clear that the Petitioner is doing transaction out of account register and stock with intention to evade the tax, which is violation of provisions the UPGST Act 2017, as such there as strong reason to believe that Petitioner is indulged in transaction out of account register, as such proceeding has been initiated Under Section 67 (2) of the UPGST Act 2017 and Rule 139 (1) of the Act, which provides: Section 67 (2) of the UPGST Act 2017: (2) Where the proper officer, not below the rank of Joint Commissioner, either pursuant to an inspection carried out under sub-section (1) or otherwise, has reasons to believe that any goods liable to confiscation or any documents or books or things, which in his opinion shall be useful for or relevant to any proceedings under this Act, are secreted in any place, he may authorize in writing any other officer of central tax to search and seize or may himself search and seize such goods, documents or books or things:
(3.) Rule 139 (1) of CGST Where the proper officer not below the rank of a Joint Commissioner has reasons to believe that a place of business or any other place is to be visited for the purposes of inspection or search or, as the case may be, seizure in accordance with the provisions of section 67, he shall issue an authorization in FORM GST INS-01 authorizing any other officer subordinate to him to conduct the inspection or search or, as the case may be, seizure of goods, documents, books or things liable to confiscation.;