2022 (12) TMI 814 - HC - GST

Cancellation of petitioner s GST registration - failure on the part of the petitioner to file returns for a period of six months prior to issuance of the show-cause notice - Section 29(2) of the Andhra Pradesh Goods and Service Tax Act 2017 - HELD THAT - The learned Division Bench of the High Court for the State of Telangana having considered the fact that GST Tribunal has not been constituted under Section 109 of the CGST Act and thereby the petitioner could not be left without any remedy held that it would be just and proper if the entire matter was remitted back to the 2nd respondent therein to reconsider the case of the petitioner and pass appropriate order in accordance with law. The petitioner preferred appeal but it was rejected. In that view of the matter and as the GST Tribunal has not been constituted as per the provisions of the Act so as to enable the petitioner to pursue his further legal remedies in the interest of justice we consider it apposite to allow the writ petition and remit the matter back to the primary authority i.e. 1st respondent to re-consider the case of the petitioner and after affording a personal hearing to him pass an appropriate order in accordance with law expeditiously but not later than two weeks from the date of receipt of copy of this order. The writ petition is allowed.

Summary

Issues:
1. Cancellation of GST registration by the 1st respondent.
2. Dismissal of appeal by the 2nd respondent due to delay.
3. Jurisdiction of the High Court under Article 226 of the Constitution.

Analysis:
1. The petitioner sought a writ of mandamus to challenge the cancellation of their GST registration by the 1st respondent. The cancellation was based on the petitioner's failure to file returns for six months prior to the issuance of the show-cause notice. The petitioner contended that the cancellation was illegal, arbitrary, and without jurisdiction, contrary to Section 29(2) of the Andhra Pradesh Goods and Service Tax Act, 2017. The petitioner appealed the cancellation, but the appeal was dismissed by the 2nd respondent due to a delay of 134 days beyond the condonable period.

2. The petitioner, through their counsel, argued that there were valid reasons for the non-filing of returns and that the appeal dismissal was solely based on a technical ground of delay. The counsel urged the court to remit the matter back to the primary authority for reconsideration, citing a similar decision by the Division Bench of the High Court for the State of Telangana in a previous case. On the other hand, the Government Pleader for Commercial Taxes opposed the writ petition, emphasizing that the appeal was filed beyond the condonable period, justifying the dismissal by the 2nd respondent.

3. The High Court, after examining the records and the precedent from a similar case, acknowledged that the GST Tribunal had not been constituted as per the provisions of the Act, leaving the petitioner without an alternative remedy. In the interest of justice, the court allowed the writ petition and remitted the matter back to the 1st respondent for reconsideration. The court directed the primary authority to re-examine the petitioner's case, provide a personal hearing, and pass an appropriate order expeditiously within two weeks from the date of the court's order.

In conclusion, the High Court allowed the writ petition, emphasizing the need for procedural fairness and timely consideration of the petitioner's case, directing the primary authority to re-evaluate the matter in accordance with the law.