2024 (5) TMI 1124 - HC - VAT and Sales Tax

Violation of the principles of natural justice - Delay and laches in filing the writ petition - opportunity of hearing not provided - cancellation of petitioner s registration of GST - Digital signature on the impugned order - Retrospective effect of the impugned order. Time limitation - HELD THAT - The Hon ble Apex Court in M/s. Godrej Sara Lee ltd. v. The Excise and taxation Officer cum Assessing Authority 2023 (2) TMI 64 - SUPREME COURT , held that the theory of mistake of law and the consequent period of limitation of three years from the date of discovery of such mistake of law cannot be invoked by an assessee taking advantage of the decision in another assessee s case. All claims for refund ought to be, and ought to have been, only under and in accordance with Rule 11/Section 11B and under no other provision and in no other forum. The decisions of the Court saying to the contrary were overruled therein. In the aforesaid case it has not been held that the period of limitation for filing writ petition is three years - The Hon ble Apex Court clearly held that Writ Court while deciding writ petition is required to remain alive to the nature of the claim and the unexplained delay on the part of the writ petitioner. Violation of principles of natural justice - HELD THAT - The show cause notice dated 01.04.2023 was issued to the petitioner and the petitioner did not submit any reply. In the order of cancellation in the first sentence it shows that this has reference to your reply dated 18.04.2023 in response to the notice to show cause dated 01.04.2023 , and in the second sentence, it clearly states that no reply to notice was filed by the petitioner . The case of the petitioner is that he did not file any reply. Consequently, there is no violation of principles of natural justice since the petitioner was served with the show cause notice and he did not file any reply. Opportunity of hearing - HELD THAT - So far as the opportunity before passing the order of suspension is concerned, the suspension was passed during the pendency of the proceedings for cancellation, the opportunity of hearing is not required. Any legal provision could also not be placed that opportunity was required before suspension. The petition is dismissed.

Issues Involved:
1. Violation of principles of natural justice.
2. Retrospective effect of the impugned order.
3. Opportunity of hearing before suspension.
4. Proper issuance and signing of the order.
5. Delay and laches in filing the writ petition.

Detailed Analysis:

1. Violation of principles of natural justice:
The petitioner argued that the impugned order was passed in violation of the principles of natural justice, as it was given retrospective effect and the petitioner's registration was suspended without any opportunity of hearing. The court noted that a show cause notice dated 01.04.2023 was issued to the petitioner, and the petitioner did not submit any reply. The order of cancellation referenced a reply dated 18.04.2023 from the petitioner, but it was noted that no reply was actually filed. Consequently, the court found no violation of principles of natural justice since the petitioner was served with the show cause notice and failed to respond.

2. Retrospective effect of the impugned order:
The petitioner claimed that the impugned order was given retrospective effect. However, the court decided not to entertain this argument due to the laches in filing the writ petition. The court emphasized that the petitioner approached the court almost one year after the impugned order, which was not considered a reasonable time.

3. Opportunity of hearing before suspension:
The petitioner contended that there was no opportunity of hearing before the suspension of registration. The court clarified that the suspension was a part of the ongoing proceedings for cancellation, and no legal provision was cited that required an opportunity of hearing before suspension. Therefore, the court concluded that an opportunity of hearing was not necessary before the suspension.

4. Proper issuance and signing of the order:
The petitioner argued that the order was not issued in the proper GST Form and was not signed by the Assistant Commissioner (ST). The court noted that the impugned order was digitally signed, dismissing the argument that the order was not signed.

5. Delay and laches in filing the writ petition:
The court extensively discussed the issue of delay and laches. The petitioner approached the court almost one year after the impugned order. The court referred to several precedents, including the Supreme Court's decisions in "State of Jammu and Kashmir v. R.K. Zalpuri" and "Mrinmoy Maity v. Chhanda Koley," which emphasize that unexplained delay and laches can be grounds for dismissing a writ petition. The court concluded that the petitioner did not approach within a reasonable time and failed to explain the delay. Consequently, the court was not inclined to entertain the writ petition on the grounds of laches.

Conclusion:
The writ petition was dismissed due to unexplained delay and laches. The court found no violation of principles of natural justice, no requirement for an opportunity of hearing before suspension, and confirmed that the impugned order was digitally signed. The retrospective effect argument was not considered due to the laches. No orders as to costs were made, and any pending miscellaneous petitions were also closed.

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