Can Non-Restoration of GST Registration be brought within the ambit of “Right to Livelihood” under Article 21

[CA Bimal Jain]

The Orissa High Court, in the case of M/S. DURGA RAMAN PATNAIK VERSUS ADDITIONAL COMMISSIONER OF GST (APPEALS) (FIRST APPELLATE AUTHORITY) & OTHERS - 2022 (10) TMI 676 - ORISSA HIGH COURT, asked the appropriate officer to give a chance to the Petitioner to take all necessary steps to revive registration and to be allowed to pay overdue GST taxes and file pending GST returns before GST registration was cancelled under Section 29(2)(c) of the Central Goods and Services Tax Act, 2017 (“the CGST Act”).

M/s Durga Raman Patnaik’s (“the Petitioner”) GST registration was cancelled in accordance with Section 29(2)(c) of the CGST Act since no returns had been filed for six months in a row. Instead of requesting revocation of cancellation of registration under Section 30 before the appropriate authorities, the Petitioner preferred an appeal under Section 107 of the CGST Act. This appeal was rejected due to law of limitations because it was submitted with around delay of 660 days.

The Petitioner filed a Writ Petition (Certiorari) with the Orissa High Court to protest this denial.

The Petitioner claimed that the appellate authority might have given him the chance to pay the tax, interest, penalty, and late fee and prevented him from approaching the Registering Authority under Section 30 by tolerating the delay, as this Court has previously done in numerous cases.

The Petitioner stated that amongst one of his defenses that, ‘the provisions of the GST enactments cannot be interpreted so as to deny the right to carry on Trade and Commerce to a citizen. The constitutional guarantee is unconditional and unequivocal and must be enforced regardless of the defect in the scheme of the GST enactments. The right to carry on trade or profession also cannot be curtailed. Only reasonable restrictions can be imposed. To deny such rights would militate against the rights under Article 14, read with Article 19(1)(g) and Article 21 of the Constitution of India.’

The Court noted that deferring to the cancellation of registration on the basis of limitation would be a futile course of action because the taxable person would not be allowed to conduct business because no tax invoice could be raised.

Therefore, it is necessary for the opposing parties to approach the situation pragmatically.

The Court in stating so, placed its reliance on TVL. SUGUNA CUTPIECE CENTER VERSUS THE APPELLATE DEPUTY COMMISSIONER (ST) (GST) , THE ASSISTANT COMMISSIONER (CIRCLE) , SALEM BAZAAR. - 2022 (2) TMI 933 - MADRAS HIGH COURT by the Madras High Court, wherein a group of cases involving specific taxpayers, whose registration had been cancelled in 2018 and 2019 under Section 29(2)(c) and whose appeals had also been denied by the Appellate Authority due to the statute of limitations, the said Court nevertheless provided them with protection by issuing a writ of mandamus under certain restrictions.

The Court therefore held that the Petitioner is allowed to file returns for the period prior to the cancellation of registration, if such returns have not already been filed, together with tax defaulted which has not been paid prior to cancellation, along with interest for such belated payment of tax and statutory payments and fee fixed for belated filing of returns for the defaulted period under the provisions of the GST Act, within a period of sixty (60) days from the date of receipt of the notice of cancellation of registration.

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