2022 (12) TMI 1034 - HC - GST

Cancellation of registration of petitioner - failure on the part of the petitioner to file returns for a period of six months prior to issuance of the show-cause notice - HELD THAT - The petitioner preferred appeal but it was rejected for the reasons discussed supra. In that view of the matter and as the GST Tribunal has not been constituted as per the provisions of the Act so as to enable the petitioner to pursue his further legal remedies, in the interest of justice, we consider it apposite to allow the writ petition and remit the matter back to the primary authority i.e., 1st respondent to re-consider the case of the petitioner and after affording a personal hearing to him, pass an appropriate order in accordance with law expeditiously but not later than two weeks from the date of receipt of copy of this order. The writ petition is allowed.

Summary

Issues:
1. Appeal rejection order for delay in filing the appeal and cancellation of GST registration.
2. Jurisdiction of the High Court under Article 226 of the Constitution.
3. Legal flaw in the order of the appellate authority.

Analysis:

Issue 1: Appeal rejection order for delay in filing the appeal and cancellation of GST registration
The petitioner sought a writ of mandamus to challenge the appeal rejection order dated 25.10.2022 by the 3rd respondent for not filing the appeal in time and the cancellation of registration issued by the 1st respondent. The petitioner's GST registration was canceled for failure to file returns, leading to the appeal. The appeal was dismissed due to a delay exceeding the condonable period as per Section 107 of the GST Act. The appellate authority lacked the power to condone the delay beyond 30 days, resulting in the rejection of the appeal for admission. The petitioner contended that the rejection was arbitrary and illegal, seeking restoration of registration.

Issue 2: Jurisdiction of the High Court under Article 226 of the Constitution
The counsel for the petitioner argued that since the GST Tribunal was not constituted under Section 109 of the CGST Act, the petitioner had no alternative but to approach the High Court under Article 226 of the Constitution. Citing a similar case in the High Court for the State of Telangana, where a writ petition was allowed and remitted to the primary authority for reconsideration, the petitioner urged the court to remit the matter back to the primary authority for a fair consideration.

Issue 3: Legal flaw in the order of the appellate authority
The Government Pleader for Commercial Taxes opposed the writ petition, asserting that the appeal was filed beyond the condonable period, justifying the rejection by the appellate authority. However, upon perusing the record and a previous decision, the High Court found that the absence of the GST Tribunal necessitated a remittance of the matter to the primary authority for reevaluation. The Court allowed the writ petition, emphasizing the need for justice and ordered the primary authority to re-consider the petitioner's case promptly.

In conclusion, the High Court allowed the writ petition, remitting the matter back to the primary authority for reconsideration within a specified timeframe, highlighting the importance of justice and the absence of the GST Tribunal as a factor influencing the decision.