Neutral Citation No. - 2025:AHC:91768 Court No. - 10 Case :- WRIT TAX No. - 2583 of 2025 Petitioner :- M/S D.S. Agri Foods Pvt. Ltd. Respondent :- State Of U.P. And 2 Others Counsel for Petitioner :- Aditya Pandey Counsel for Respondent :- C.S.C. Hon'ble Piyush Agrawal,J. 1. Heard Sri Aditya Pandey counsel for the petitioner, Sri Ravi Shankar Pandey, learned Additional Chief Standing Counsel for the State-respondents. 2. By means of the present petition, the petitioner has challenged the orders dated 29.01.2025 passed by respondent no.2 and 11.11.2024 passed by respondent no.3 under Section 130 read with Section 122 of UPGST Act (in short 'the Act'). 3. Counsel for the petitioner submits that the business premises of the petitioner was surveyed on 11.10.2023 and investigation of the stock was done and alleged to be mismatched with the account managed by the petitioner. As a result whereof, notices under Section 130 read with Section 122 of the Act were issued to the petitioner, to which a reply was submitted by the petitioner, but not being satisfied, the impugned order dated 11.11.2024 was passed. Against the order dated 11.11.2024, an appeal was preferred by the petitioner, which has been dismissed by the impugned order dated 29.01.2025. Hence, the present writ petition. 4. Counsel for the petitioner submits that instead of initiating the proceedings under Section 73 or 74 of the Act, the proceedings have been initiated under Section 130 read with Section 122 of the Act. He further submits that the issue has already been dealt with by this Court in M/s. Vijay Trading Company Vs. Additional Commissioner Grade-2 and another, passed in Writ Tax No.1278 of 2024, dated 20.08.2024. Against the said judgment, a Special Leave Petition (Civil) Diary No.5881 of 2025 was filed, which has been decided by order dated 04.04.2025. He further submits that another case was also decided by this Court in M/s. Pp Polyplast Pvt. Ltd. Vs. Additional Commissioner Grade 2 and another, passed in Writ Tax No.1183 of 2024, dated 30.7.2024. Against the said judgment, the State has preferred a Special Leave Petition (Civil) Diary No.5880 of 2025, which was decided on 15.04.2025. He submits that the issue, in hand, has already been decided, therefore, the present petition may also be decided in same terms without calling for a counter affidavit, to which learned Standing Counsel has no objection. 5. From perusal of the records, it appears that the proceedings ought not to have been initiated under Section 130 read with Section 122 of the Act. Section 35(6) of the Act contemplates that if the proper officer founds that the books of account maintained by the petitioner is not properly counted for then the proceedings under Section 73 or 74 of the Act shall be pressed to service. The proceedings should have been initiated under Section 73 or 74 of the Act. 6. In view of the judgments of this Court in the case M/s. Vijay Trading Company (supra) and M/s. Pp Polyplast Pvt. Ltd. (supra) (as stated hereinabove) affirmed by the Apex Court, the present proceedings under Section 130 read with Section 122 of the Act cannot be put to service if the stock was found in excess at the time of survey, therefore, the impugned orders cannot sustain in the eyes of law. 7. Accordingly, the impugned order dated 29.01.2025 passed by respondent no.2 and the order dated 11.11.2024 passed by respondent no.3 are hereby quashed. 8. The writ petition succeeds and is, accordingly, allowed. Order Date :- 28.5.2025 CS/- Digitally signed by :- CHANDAN SINGH High Court of Judicature at Allahabad