2022 (9) TMI 667 - HC - GST

Cancellation of GST registration of petitioner - joint owner of the premises (not in consensus with each other) - requirement of amicable settlement between the joint owners - HELD THAT - In the instant case, indisputably, petitioner and respondent No.5, who are joint owner of the premises, do not see eye-to-eye with each other. Both have lodged their respective claims before the authorities concerned including the designated authority under the Act for grant of license and registration etc. The licensing authority would not be in a position to grant license under the Act with respect to the premises, ownership and possession whereof is claimed by the petitioner as well as respondent No.5 nor it would be possible for the licensing authority to name any of them to be the Food Business Operator i.e. the person responsible to carry on the food business and comply with the terms and conditions of the license. The decision of the designated authority under the Act not to renew the license in favour of respondent No.5 is, thus, completely in consonance with law. The petitioner and respondent No.5 are required to settle their dispute amicably or through the intervention of Court. The petitioner or for that matter respondent No.5 shall not be entitled to registration under the Goods and Services Tax Act, 2017 (GST). Chapter-VI of the GST deals with registration. In terms of Section 22 of the GST, every supplier shall be liable to be registered under the GST Act in the State or Union Territory from where he makes a taxable supply of goods or services or both, if his aggregate turnover in a financial year exceeds twenty lakh rupees - there is not even an iota of doubt that person running a restaurant and selling the goods and providing restaurant services would be a Supplier‟ within the meaning of term defined under Section 2(105) of GST Act and, therefore, would require registration under the Act, if aggregate turn over in a financial year exceeds rupees twenty lakh. In the instant case, till dispute between the petitioner and respondent No.5 is settled and two, either jointly apply or property is partitioned and fall in the share of the person applying, no license can be issued by the designated authority under the Act. This Court arrives at the conclusion that neither the petitioner nor respondent No.5 is entitled to have a license under the Act or registration under the GST Act in his favour to the exclusion of other. They may, if they so desire, bury the hatchet and apply jointly for grant of requisite license and registration for running the food business of Samci Restaurant jointly. If they do so, there would be no difficulty either for the designated authority under the Act or the competent registering authority under the GST Act to grant license and registration for facilitating the running of food business of Samci Restaurant in favour of the petitioner and respondent No 5 - there is hardly any need to advert to the case law cited on both sides. This Court has neither entered in the arena of adjudication of complicated disputed questions of fact nor has it relegated the parties to the remedy of appeal before the authority under the Act and GST Act respectively in view of peculiar facts and circumstances of the case. This writ petition is disposed of by holding that so long as the premises to be licensed under the Act remains under dispute between the petitioner and respondent No.5, the designated authority under the Act is well within its power not to grant or renew the license under the Act in favour of one and to the exclusion of other. The parties need to settle their dispute either amicably or through intervention of the Court.

Summary

Issues Involved:
1. Legality of the license issued under the Food Safety and Standards Act, 2006.
2. Validity of the communication regarding the license.
3. Cancellation of GST registration and issuance of a fresh registration.

Issue-wise Detailed Analysis:

1. Legality of the License Issued Under the Food Safety and Standards Act, 2006

The petitioner challenged the license dated 15th May 2019 issued by the Designated Officer under the Food Safety and Standards Act, 2006, in favor of respondent No.5 for "Samci Restaurant". The petitioner argued that the license was obtained fraudulently and that there is no provision in the Act for transferring a license from one person to another. The court noted that the Act and the Regulations require a license for any food business and that it is granted to a person in respect of premises. The court found that both the petitioner and respondent No.5 are joint owners of the premises and that the license was issued to the premises, not an individual. The court concluded that the designated officer's action was legal and in accordance with the Act, as the property was jointly owned and the license was granted to the premises.

2. Validity of the Communication Regarding the License

The petitioner also contested the communication dated 2nd December 2020, which stated that the license was issued to the premises and not to respondent No.5 individually. The court observed that the designated officer had advised including the petitioner's name in the application form to comply with the license conditions. The court upheld this communication, emphasizing that the license was issued to the premises and that the designated officer's advice was appropriate and lawful.

3. Cancellation of GST Registration and Issuance of a Fresh Registration

The petitioner challenged the order dated 16th April 2021, which canceled his GST registration and issued a new one in favor of respondent No.5. The petitioner alleged fraud and manipulation by respondent No.5. The court noted that under the GST Act, a supplier must be registered if their turnover exceeds twenty lakh rupees. The court held that neither the petitioner nor respondent No.5 could be granted registration under the GST Act until their dispute was resolved. The court concluded that both parties need to settle their dispute amicably or through court intervention before any registration under the GST Act could be granted.

Conclusion

The court held that the license under the Food Safety and Standards Act and the GST registration could not be granted to either party exclusively due to the ongoing dispute over the premises. Both parties were advised to resolve their dispute either amicably or through court intervention. Until the dispute is settled, neither party is entitled to carry on the food business at "Samci Restaurant" without the requisite licenses and registrations. The authorities were directed to act accordingly and not to grant or renew any licenses or registrations until the dispute is resolved.