2024 (3) TMI 551 - HC - GST

Cancellation Of GST registration retrospectively - Defective Show Cause Notice - SCN does not put the petitioner to notice that the registration is liable to be cancelled retrospectively - trading of ferrous and non-ferrous metals - HELD THAT - We notice that the Show Cause Notice and the impugned order are bereft of any details accordingly the same cannot be sustained. Neither the Show Cause Notice, nor the order spell out the reasons for retrospective cancellation. In terms of Section 29(2) of the Central Goods and Services Tax Act, 2017, the proper officer may cancel the GST registration of a person from such date including any retrospective date, as he may deem fit if the circumstances set out in the said sub-section are satisfied. The registration cannot be cancelled with retrospective effect mechanically. It can be cancelled only if the proper officer deems it fit to do so. Such satisfaction cannot be subjective but must be based on some objective criteria. Merely, because a taxpayer has not filed the returns for some period does not mean that the taxpayer s registration is required to be cancelled with retrospective date also covering the period when the returns were filed and the taxpayer was compliant. It is important to note that, according to the respondent, one of the consequences for cancelling a taxpayer s registration with retrospective effect is that the taxpayer s customers are denied the input tax credit availed in respect of the supplies made by the tax payer during such period. Although, we do not consider it apposite to examine this aspect but assuming that the respondent s contention in this regard is correct, it would follow that the proper officer is also required to consider this aspect while passing any order for cancellation of GST registration with retrospective effect. Thus, a taxpayer s registration can be cancelled with retrospective effect only where such consequences are intended and are warranted. Thus, Order dated 29.02.2024 cannot be sustained and is accordingly set aside. The GST registration of the petitioner is restored - The petition is accordingly disposed of in the above terms.

Summary

Issues involved:
The issues involved in this case are the retrospective cancellation of GST registration and the lack of details in the Show Cause Notice and impugned order.

Retrospective cancellation of GST registration:
The petitioner challenged the order cancelling their GST registration retrospectively from 05.05.2018, citing Section 29(2)(e) of the Central Goods and Services Tax Act, 2017, which allows cancellation for reasons like fraud or wilful misstatement. The petitioner, engaged in trading ferrous and non-ferrous metals, contended that the Show Cause Notice lacked specifics, such as the officer's name or location for appearance, and failed to notify about the retrospective cancellation possibility. The subsequent order also lacked detailed reasoning for the cancellation, merely referencing the Show Cause Notice and effective date.

Lack of details in the Show Cause Notice and order:
The High Court observed that both the Show Cause Notice and the impugned order were deficient in providing necessary details for the cancellation. It was emphasized that cancellation with retrospective effect cannot be done mechanically; the proper officer must base the decision on objective criteria, not merely due to a taxpayer's failure to file returns for a period. The Court highlighted that cancelling registration retrospectively affects customers' input tax credit, indicating that such consequences must be considered before making such a decision.

Judgment:
The Court set aside the order dated 29.02.2024, restoring the petitioner's GST registration. However, the petitioner was directed to fulfill all necessary compliances, file required returns, and provide information as per Rule 23 of the Central Goods and Services Tax Rules, 2017. The respondents were not barred from taking lawful steps for recovering any due tax, penalty, or interest, including retrospective cancellation of GST registration. The petition was disposed of accordingly.