2024 (3) TMI 1266 - HC - GST

Maintainability of appeal - time limitation - appeal dismissed as barred by limitation since the same was filed beyond the prescribed period of four months - Cancellation of GST registration of petitioner - failure to submit GST returns for a continuous period of six months - HELD THAT - A perusal of the material on record will indicate that it is no doubt true that the appeal preferred by the petitioner before the Appellate Authority was dismissed as barred by limitation, in this context a perusal of the order of the Appellate Authority at Annexure F dated 27.12.2023 will indicate that the merits of the claim of the petitioner for revocation of the GST cancellation has not been examined by the Appellate Authority, which has proceeded to summarily dismiss the appeal as barred by limitation - if an appeal is dismissed as barred by limitation, the order of the original authority would still remain and would not merge with the order-in-appeal and order of the original authority would be capable of being challenged under Article 226 of the Constitution of India subject to all exceptions known in law. Merely because appeal preferred by the petitioner was dismissed by the Appellate Authority vide impugned order at Annexure F dated 27.12.2023, it cannot be said that this Court is denuded of its power and jurisdiction to examine the claim of the petitioner under Article 226 of the Constitution of India or to examine the legality, validity and correctness of the order of the original authority under Article 226 of the Constitution of India. Whether any indulgence is to be shown to the petitioner in the facts and circumstances of the instant case so as to enable the petitioner to seek revocation of the GST cancellation in its favour? - HELD THAT - The petitioner is supplying food supplements to Anganwadi Centres and schools and is a society registered under the Karnataka Societies Registration Act. It is also pertinent to note that the petitioner has specifically contended that its inability and omission to file its returns within the prescribed / stipulated period was due to bona fide reasons, unavoidable circumstances and sufficient cause - matter remitted back to respondent No. 2 for consideration of the claim of the petitioner for revocation of GST cancellation after providing sufficient and reasonable opportunity to the petitioner. Petition allowed by way of remand.

Summary

Issues involved:
The issues involved in the judgment are the cancellation of GST registration of the petitioner due to failure to submit returns, dismissal of appeal by the Appellate Authority as barred by limitation, and the petitioner seeking revocation of the GST cancellation.

Cancellation of GST Registration:
The petitioner failed to submit GST returns for six months due to inoperative email ID, leading to cancellation of GST registration. The petitioner, a Society supplying food supplements to Anganwadi Centres and schools, filed a statutory appeal which was dismissed as barred by limitation. The petitioner expressed willingness to pay pending tax along with interest and avail Input Tax Credit. The petitioner sought revocation of the cancellation, arguing that the original authority's order should be set aside and the matter remitted back for consideration.

Dismissal of Appeal and Legal Merger:
The Appellate Authority dismissed the appeal as barred by limitation without examining the merits of the claim for revocation of GST cancellation. The dismissal of an appeal as barred by limitation does not result in a legal merger of the original authority's order with the appellate order. Therefore, the original authority's order remains challengeable under Article 226 of the Constitution of India.

Judicial Review and Revocation of GST Cancellation:
The Court held that it retains jurisdiction to examine the legality of the original authority's order under Article 226 of the Constitution of India, despite the dismissal of the appeal by the Appellate Authority. Considering the petitioner's bona fide reasons for the delay in filing returns, the Court found it just to set aside the impugned order and remit the matter back to the original authority for reconsideration of the claim for revocation of GST cancellation. The petitioner was granted the opportunity to present pleadings and documents to the authority for further proceedings.

Conclusion:
The Court allowed the petition, setting aside the order of cancellation of GST registration. The matter was remitted back to the original authority for reconsideration of the petitioner's claim for revocation. The petitioner was directed to appear before the authority on a specified date, with the authority instructed to pass appropriate orders within three months of the appearance.