9911796707
|
Home
Forgot password New User/ Regiser ⇒ Register to get Live Demo
2023 (3) TMI 1169 - HC - GSTSeeking restoration of Goods and Service Tax (GST) registration, which was canceled ab-initio - petitioner s claim for refund of ITC was rejected because the petitioner was found to be non-existent and non-functional at the registered place of business - whether the petitioner s GST registration is liable to be cancelled and if so from which date? HELD THAT - There is no dispute that the petitioner had over a period from August, 2017 to November, 2022 filed its return and paid the necessary taxes. The petitioner has filed a statement for the tax liability from 01.07.2017 till November, 2022. The petitioner claims that it had transferred the business and continued it under the same name, albeit in partnership with another individual, with effect from 31.07.2021 - There appears to be no dispute that the firm constituted on 31.07.2021 had applied for and obtained GST registration in respect of its principal place of business in Haryana. The physical inspection carried out by the Range Officer had also indicated that a board was found hanging outside the premises which mentioned that the unit M/s A.S. Fasteners has been shifted to Badli Industrial Area. This supported the petitioner s contention that he was carrying on the business from its principal place of business till July, 2021 and thereafter from its principal place of business in Haryana. In terms of Section 29(2) of the Act, the proper officer has the discretion to cancel the registration from such date as he may deem fit if any of the reasons as set out in Section 29(2) of the Act are established. In the present case, there is no allegation that the petitioner had obtained its registration by means of fraud, wilful misstatement or suppression of facts. In any view, there is no material to establish any such allegation as there is no dispute that the petitioner had filed his returns and paid the tax as disclosed by it. The only ground on which the petitioner s registration has been cancelled is that he has contravened the provisions of the Act inasmuch as he has not filed the requisite returns for transfer of stock and capital goods. He has also not filed the requisite information disclosing transfer of business to the firm - However, the material on record indicates that the petitioner was carrying on its business from its principal place of business in Delhi and had shifted it to Haryana. In these facts, the petitioner s registration cannot be cancelled from the date he had obtained the same. It is considered apposite to direct that the impugned order dated 14.01.2022 cancelling the petitioner s registration with effect from 02.07.2017 be set aside. The respondent no.1 shall initiate proceedings for cancellation of the petitioner s registration with effect from 31.07.2021 and also determine the amount of tax, penalty or interest that may be payable by the petitioner for not reflecting the transfer of stock and capital goods to the firm. The impugned order dated 09.03.2022 rejecting the petitioner s application for refund is also set aside - petition disposed off.
Issues Involved:
1. Cancellation of GST registration. 2. Rejection of the claim for Input Tax Credit (ITC) refund. 3. Non-filing of returns regarding the transfer of stock and capital goods. Summary: 1. Cancellation of GST Registration: The petitioner challenged the order dated 31.10.2022 by the Appellate Authority which rejected the appeal against the Adjudicating Authority's order dated 22.02.2022. The Adjudicating Authority had canceled the petitioner's GST registration ab-initio and rejected the application for its restoration. The petitioner argued that the business had shifted to Haryana and had obtained a new GST registration there. The court found no ground for the respondent to believe that the petitioner was non-existent from the date of its registration and directed that the cancellation order be set aside. The court instructed the respondent to initiate proceedings for cancellation of the petitioner's registration with effect from 31.07.2021 instead. 2. Rejection of the Claim for ITC Refund: The petitioner also contested the rejection of the ITC refund claim of Rs. 24,91,347 by the Adjudicating Authority on 09.03.2022. The rejection was primarily due to the petitioner being found non-existent at the registered place of business. The court noted that the discrepancies flagged in the show-cause notice were satisfactorily resolved by the petitioner, except for a small amount of Rs. 1,28,175 which was beyond the stipulated period. The court set aside the order rejecting the ITC refund application and directed the respondent to reconsider the application in light of the new directions. 3. Non-filing of Returns Regarding Transfer of Stock and Capital Goods: The petitioner admitted to not filing the necessary returns for the transfer of stock and capital goods due to a lack of professional assistance during the pandemic. The court acknowledged that while this failure might invite necessary consequences under the Act, it should not be a ground to withhold the refund of accumulated ITC. The court emphasized that the petitioner had continued the business under a new partnership and had paid all due taxes. Conclusion: The court directed that the impugned orders be set aside, and the respondent should initiate fresh proceedings for cancellation of GST registration from 31.07.2021. The respondent was also instructed to reconsider the petitioner's application for an ITC refund. The petition was disposed of with these directions.
|
