Cancelled GST Registration as a result of Non Filing of GST Returns due to sudden demise of Auditor to be Restored

[CA Bimal Jain]

The Hon’ble Karnataka High Court in the case of SRI. KOLAPUDI ENOCH WASHINGTON PROPRIETOR OF M/S. INXL DIGITAL VERSUS THE ADDITIONAL COMMISSIONER (GST AND CENTRAL TAX) BENGALURU, THE SUPERINTENDENT OF CENTRAL TAX BENGALURU  - 2022 (11) TMI 679 - KARNATAKA HIGH COURT directed the Goods and Services Tax (“GST”) Department to restore the cancelled GST registration as the Petitioner could not file the GST returns due to sudden demise of the auditor.

Facts:

M/s Kolapudi Enoch Washington (“the Petitioner”), contended that because of the untimely and sudden death of his auditor, GST return could not be filed on time and because of said delay the Respondents issued the Petitioner a show cause notice ("SCN”) dated February 24, 2022. The Petitioner did not receive the SCN because spam filtering setting in the Petitioner’s email account. As a result, the Petitioner was unaware of the SCN and did not respond, which led to cancelling of GST registration by the Respondent x. the Petitioner filed appeal before Additional Commissioner (“the Appellate Authority") under Section 107 of Central Goods and Services Act, 2017 (“the CGST Act”). However, the appeal was dismissed on the ground of the delay which cannot be condoned as the Appellate Authority lacks jurisdiction for the same. Therefore, the thee Petitioner filed present writ petition seeking condonation of delay under Article 226 of the Constitution and setting aside the Orders passed against the Petitioner.

Issue:

Whether GST Registration can be cancelled due to non-filing of returns as a result of sudden demise of auditor be restored?

Held:

The High Court held as under:

• Though, Appellate Authority do not have the jurisdiction to condone the delay but the same can be condoned by the High Court under Article 226 of the Constitution.
• Explanation offered by the Petitioner for not being able to file the GST return is just.
• Therefore, the High Court Ordered as under:

• Order dated October 6, 2022 passed by Additional Commissioner is set aside.
• The Department is directed to restore the GST registration in favour of The Petitioner without any delay.
• The Petitioner is permitted to file GST returns which shall be allowed by the Respondents, subject to the Petitioner paying all outstanding dues to the Respondents. 

Relevant Provisions:

Article 226 of the Indian Constitution

Power of High Courts to issue certain writs

1. Notwithstanding anything in Article 32 every High Court shall have powers, throughout the territories in relation to which it exercise jurisdiction, to issue to any person or authority, including in appropriate cases, any Government, within those territories directions, orders or writs, including writs in the nature of habeas corpus, mandamus, prohibitions, quo warranto and certiorari, or any of them, for the enforcement of any of the rights conferred by Part III and for any other purpose
2. The power conferred by clause (1) to issue directions, orders or writs to any Government, authority or person may also be exercised by any High Court exercising jurisdiction in relation to the territories within which the cause of action, wholly or in part, arises for the exercise of such power, notwithstanding that the seat of such Government or authority or the residence of such person is not within those territories
3. Where any party against whom an interim order, whether by way of injunction or stay or in any other manner, is made on, or in any proceedings relating to, a petition under clause (1), without

1. furnishing to such party copies of such petition and all documents in support of the plea for such interim order; and
2. giving such party an opportunity of being heard, makes an application to the High Court for the vacation of such order and furnishes a copy of such application to the party in whose favour such order has been made or the counsel of such party, the High Court shall dispose of the application within a period of two weeks from the date on which it is received or from the date on which the copy of such application is so furnished, whichever is later, or where the High Court is closed on the last day of that period, before the expiry of the next day afterwards on which the High Court is open; and if the application is not so disposed of, the interim order shall, on the expiry of that period, or, as the case may be, the expiry of the aid next day, stand vacated

4. The power conferred on a High Court by this article shall not be in derogation of the power conferred on the Supreme court by clause (2) of Article 32

Section 107 of the CGST Act

Appeals to Appellate Authority

1. Any person aggrieved by any decision or order passed under this Act or the State Goods and Services Tax Act or the Union Territory Goods and Services Tax Act by an adjudicating authority may appeal to such Appellate Authority as may be prescribed within three months from the date on which the said decision or order is communicated to such person.
2. The Commissioner may, on his own motion, or upon request from the Commissioner of State tax or the Commissioner of Union territory tax, call for and examine the record of any proceedings in which an adjudicating authority has passed any decision or order under this Act or the State Goods and Services Tax Act or the Union Territory Goods and Services Tax Act, for the purpose of satisfying himself as to the legality or propriety of the said decision or order and may, by order, direct any officer subordinate to him to apply to the Appellate Authority within six months from the date of communication of the said decision or order for the determination of such points arising out of the said decision or order as may be specified by the Commissioner in his order.
3. Where, in pursuance of an order under sub-section (2), the authorised officer makes an application to the Appellate Authority, such application shall be dealt with by the Appellate Authority as if it were an appeal made against the decision or order of the adjudicating authority and such authorised officer were an appellant and the provisions of this Act relating to appeals shall apply to such application.
4. The Appellate Authority may, if he is satisfied that the appellant was prevented by sufficient cause from presenting the appeal within the aforesaid period of three months or six months, as the case may be, allow it to be presented within a further period of one month.
5. Every appeal under this section shall be in such form and shall be verified in such manner as may be prescribed.
6. No appeal shall be filed under sub-section (1), unless the appellant has paid- (a) in full, such part of the amount of tax, interest, fine, fee and penalty arising from the impugned order, as is admitted by him; and (b) a sum equal to ten per cent. of the remaining amount of tax in dispute arising from the said order, in relation to which the appeal has been filed.
7. Where the appellant has paid the amount under sub-section (6), the recovery proceedings for the balance amount shall be deemed to be stayed.
8. The Appellate Authority shall give an opportunity to the appellant of being heard.
9. The Appellate Authority may, if sufficient cause is shown at any stage of hearing of an appeal, grant time to the parties or any of them and adjourn the hearing of the appeal for reasons to be recorded in writing: Provided that no such adjournment shall be granted more than three times to a party during hearing of the appeal.
10. The Appellate Authority may, at the time of hearing of an appeal, allow an appellant to add any ground of appeal not specified in the grounds of appeal, if it is satisfied that the omission of that ground from the grounds of appeal was not wilful or unreasonable.
11.  The Appellate Authority shall, after making such further inquiry as may be necessary, pass such order, as it thinks just and proper, confirming, modifying or annulling the decision or order appealed against but shall not refer the case back to the adjudicating authority that passed the said decision or order:

Provided that an order enhancing any fee or penalty or fine in lieu of confiscation or confiscating goods of greater value or reducing the amount of refund or input tax credit shall not be passed unless the appellant has been given a reasonable opportunity of showing cause against the proposed order:

Provided further that where the Appellate Authority is of the opinion that any tax has not been paid or short-paid or erroneously refunded, or where input tax credit has been wrongly availed or utilised, no order requiring the appellant to pay such tax or input tax credit shall be passed unless the appellant is given notice to show cause against the proposed order and the order is passed within the time limit specified under section 73 or section 74.

12. The order of the Appellate Authority disposing of the appeal shall be in writing and shall state the points for determination, the decision thereon and the reasons for such decision.
13.  The Appellate Authority shall, where it is possible to do so, hear and decide every appeal within a period of one year from the date on which it is filed: Provided that where the issuance of order is stayed by an order of a court or Tribunal, the period of such stay shall be excluded in computing the period of one year.
14.  On disposal of the appeal, the Appellate Authority shall communicate the order passed by it to the appellant, respondent and to the adjudicating authority.
15.  A copy of the order passed by the Appellate Authority shall also be sent to the jurisdictional Commissioner or the authority designated by him in this behalf and the jurisdictional Commissioner of State tax or Commissioner of Union Territory Tax or an authority designated by him in this behalf.
16.  Every order passed under this section shall, subject to the provisions of section 108 or section 113 or section 117 or section 118 be final and binding on the parties.

(Author can be reached at [email protected])