2022 (7) TMI 128 - HC - GST

Maintainability of petition - availability of alternative and efficacious remedy to the petitioner/appellant under Section 107 of the Uttarakhand Goods and Services Tax Act 2017 - cancellation of registration of petitioner - When if the statutory remedy or appeal under Section 35 is barred by the law of limitation whether in a Writ Petition under Article 226 of the Constitution of India the order passed by the original adjudicating authority could be challenged on merit? - Section 107 of the Uttarakhand Act. HELD THAT - It is apparent from the record that a notice was given on the website which is not sufficient and a personal notice has to be given before cancellation of the registration. Therefore the Court can invoke its jurisdiction under Article 226 of the Constitution and hold that the orders passed by the learned Commissioner can be interfered in a writ jurisdiction. Viewing from another angle it is apparent that the law made by the Parliament as well as the Legislature with regard to the appeals is very strict insofar as that it does not provide an unlimited jurisdiction on the First Appellate Authority to extend the limitation beyond one month after the expiry of the prescribed limitation. In such case the petitioner/appellant is put to hardship and is left without remedy. In such cases the party concerned may face starvation because of denial of livelihood for want of GST Registration. In this case the petitioner/appellant is a semi-skilled labourer working as a painter doing painting on doors windows of the houses - if the petitioner is denied a GST registration number it affects his chances of getting employment or executing works. Such denial of registration of GST number therefore affects his right to livelihood. If he is denied his right to livelihood because of the fact that his GST Registration number has been cancelled and that he has no remedy to appeal then it shall be violative of Article 21 of the Constitution as right to livelihood springs from the right to life as enshrined in Article 21 of the Constitution of India. In this case if we allow the situation so prevailing to continue then it will amount to violation of Article 21 of the Constitution and right to life of a citizen of this country. The writ petition is maintainable and the learned Single Judge should have acted upon his judicial conscience enriched by judicial experience and practical wisdom and held that the writ petition should be entertained. It is apparent from Sub-Section (1) of Section 107 of the Uttarakhand Act that any person aggrieved by any decision under the Act or the Central Goods and Services Tax Act by an adjudicating authority may appeal to such Appellate Authority as may be prescribed within the time frame. Now the question is - whether the Assistant Commissioner of GST whose order is challenged in this case is an adjudicating authority or not? - This question came before the Hon ble Supreme Court in the case of M/S RADHA KRISHAN INDUSTRIES VERSUS STATE OF HIMACHAL PRADESH ORS. 2021 (4) TMI 837 - SUPREME COURT wherein the power to levy a provisional attachment of the bank accounts by the Commissioner of GST was questioned. Upon such challenge before the Hon ble High Court of Himachal Pradesh the said writ petition was dismissed. Thereafter the matter went to the Supreme Court in a Special Leave Petition. The Hon ble Supreme Court took into consideration the provision of Section 107 of the Himachal Pradesh Goods and Services Tax Act 2017 (hereinafter referred to as the H.P. Act ) as well as Section 2(4) of the H.P. Act which defines adjudicating authority and gave a finding. Section 2(4) of the Uttarakhand Act defines adjudicating authority to mean any authority appointed or authorised to pass any order or decision under this Act but does not include the Commissioner Revisional Authority etc. The provisions of the Uttarakhand Act is pari materia with the definition of adjudicating authority provided in the H.P. Act - Sub-Section (91) of Section 2 provides for the proper officer in relation to any function to be performed under this Act means the Commissioner or the officer of the State tax who is assigned that functions by the Commissioner. Thus it is apparent that the office of the Assistant Commissioner acts under the aegis and control of the Commissioner and nowhere in the Uttarakhand Act it is provided that he shall act independently to the duties assigned to him by the Commissioner. The learned Single Judge has committer error by holding that the writ petition is not maintainable and therefore the same requires to be set aside. However we are also aware of the fact that the learned Single Judge has not given any findings about the merits on the claim of the petitioner/appellant so far as the cancellation of his GST Registration number is concerned. Hence the matter has to be remanded. Appeal allowed.

Summary

Issues Involved:
1. Maintainability of the writ petition despite the availability of an alternative remedy under Section 107 of the Uttarakhand Goods and Services Tax Act, 2017.
2. Adequacy of notice provided before the cancellation of GST registration.
3. Impact of cancellation of GST registration on the right to livelihood under Article 21 of the Constitution.
4. Interpretation of "adjudicating authority" under the Uttarakhand Act and its implications on the appeal process.

Issue-Wise Detailed Analysis:

1. Maintainability of the Writ Petition:
The appellant challenged the dismissal of his writ petition on the grounds that it was not maintainable due to an alternative remedy under Section 107 of the Uttarakhand Goods and Services Tax Act, 2017. The court referenced the Supreme Court's judgment in Whirlpool Corporation Vs Registrar of Trade Marks, which allows writ petitions even when alternative remedies exist if fundamental rights are enforced, the vires of an Act are challenged, principles of natural justice are violated, or the order is wholly without jurisdiction. The court noted that the statute does not prohibit the exercise of writ jurisdiction under Article 226 of the Constitution, and the practice of not entertaining writ petitions where alternative remedies exist is a self-imposed internal mechanism of the courts.

2. Adequacy of Notice Before Cancellation:
The court found that the notice given on the website was insufficient. A personal notice should have been provided before the cancellation of the GST registration. This inadequacy allowed the court to invoke its jurisdiction under Article 226 to interfere with the orders passed by the learned Commissioner.

3. Impact on Right to Livelihood:
The court highlighted the strictness of the law regarding appeals and the hardship faced by the petitioner due to the cancellation of his GST registration. The inability to appeal within the prescribed limitation period left the petitioner without remedy, affecting his right to livelihood. The court emphasized that denial of GST registration affects the petitioner's chances of employment and violates Article 21 of the Constitution, which includes the right to livelihood.

4. Interpretation of "Adjudicating Authority":
The court examined whether the Assistant Commissioner of GST qualifies as an "adjudicating authority" under Section 107 of the Uttarakhand Act. The Supreme Court's judgment in Radha Krishan Industries Vs State of Himachal Pradesh was referenced, which clarified that the expression "adjudicating authority" does not include the Commissioner. The Uttarakhand Act's definition of "adjudicating authority" is similar to the Himachal Pradesh Act, and the Assistant Commissioner acts under the control of the Commissioner. Therefore, the court concluded that an appeal under Section 107 does not lie against orders passed by the Assistant Commissioner, including the cancellation of GST registration.

Conclusion:
The court held that the writ petition was maintainable and the learned Single Judge erred in dismissing it on maintainability grounds. The matter was remanded to the learned Single Judge for consideration on merits, specifically regarding the cancellation of the appellant's GST registration. The Special Appeal was allowed, and the case was directed to be listed before the assigned Single Bench.