2024 (10) TMI 1296 - HC - GST

Maintainability of petition - non-constitution of Appellate Tribunal - Jurisdiction and authority of the Assistant Commissioner as a proper officer and adjudicating authority. - cancellation of registration of GST of petiitoner - HELD THAT - Since by order dated 30.06.2017, the Assistant Commissioner of State Tax, State Goods and Services Tax Officer has been assigned the functions of proper officer under the Uttarakhand Goods and Service Tax Act, 2017 by invoking powers conferred under sub Section (1), sub Section (3) of Section 5 read with clause (91) of Section 2 of the Uttarakhand Goods and Service Act, 2007 (Act No. 06 of 2017) and the Rules framed thereunder, which has not been challenged by the writ petitioner in the writ petition, whereby the Assistant Commissioner, who passed the order of cancellation of GST registration, is admittedly is an adjudicating authority as per Section 2(4) of the Act, which excludes the Commissioner and is also a proper officer in terms of Section 29(1) of the Act and hence the Appeal will lie against an order passed by such officer, i.e. Assistant Commissioner to the Commissioner. Since after the remand order, the writ petition was disposed of by the learned Single Judge on 18.08.2022, which has not been assailed and for a limited purposes the review application has been preferred whether an Appeal will lie before the Commissioner against an order passed by the Assistant Commissioner, therefore, the Review Application is being allowed, in part. The judgment and order passed by this Court on dated 20.06.2022 is reviewed and modified by holding that since the Commissioner has assigned the functions under the Act to the Assistant Commissioner and due to this assignment, the Assistant Commissioner being an officer under the Act is a proper officer in terms of Section 2(91) and also an adjudicating authority in terms of Section 2(4) of the Act and hence the Appeal will lie against the order passed by the Assistant Commissioner, before the Commissioner.

Summary

Issues Involved:
1. Maintainability of the writ petition due to non-constitution of the Appellate Tribunal.
2. Jurisdiction and authority of the Assistant Commissioner as a "proper officer" and "adjudicating authority."
3. Applicability of Section 107 of the Uttarakhand Goods and Service Tax Act, 2017 regarding appeals.

Issue-wise Detailed Analysis:

1. Maintainability of the Writ Petition:
The initial issue addressed was the maintainability of the writ petition due to the absence of an Appellate Tribunal in Uttarakhand as required under Section 109 of the GST Act. The learned Single Judge initially dismissed the writ petition on 30.09.2021, but the decision was overturned on appeal. The High Court allowed the Special Appeal on 20.06.2022, holding that the writ petition was maintainable and remanded the matter for consideration on merits. This decision was based on the fact that the Appellate Tribunal had not been constituted, thus justifying the writ petition's maintainability.

2. Jurisdiction and Authority of the Assistant Commissioner:
The core issue in the review application was whether the Assistant Commissioner, designated as a "proper officer" under the Uttarakhand Goods and Service Tax Act, 2017, had the jurisdiction to cancel GST registration and whether such an order was appealable to the Commissioner. The Assistant Commissioner was empowered by an order dated 30.06.2017, assigning him the functions of a proper officer under the Act. The court examined the definitions provided in Sections 2(4) and 2(91) of the Act, which define "adjudicating authority" and "proper officer," respectively. The Assistant Commissioner was deemed to be acting under the aegis of the Commissioner, and thus, his orders were considered to fall within the jurisdiction of the adjudicating authority as per the Act.

3. Applicability of Section 107 Regarding Appeals:
Section 107 of the Act provides the framework for appeals against decisions made by adjudicating authorities. The court reviewed whether the Assistant Commissioner's order could be appealed before the Commissioner. The court concluded that since the Assistant Commissioner was acting as an adjudicating authority under the Act, appeals against his orders were valid under Section 107. This conclusion was supported by the interpretation of similar provisions in the Himachal Pradesh Goods and Service Tax Act, as discussed in the Supreme Court's judgment in Radha Krishan Industries Vs. State of Himachal Pradesh.

Conclusion:
The review application was allowed in part, modifying the earlier judgment by holding that the Assistant Commissioner, acting as a proper officer and adjudicating authority, was within his rights to cancel GST registration. Consequently, appeals against such decisions should be directed to the Commissioner. The court's decision underscored the importance of the statutory framework governing the roles and appeal mechanisms within the GST legal structure.