2024 (7) TMI 288 - HC - GST

Cancellation of the GST registration of the Petitioner - Appeal dismissed as barred by limitation - doctrine of merger - HELD THAT - A perusal of the material on record will indicate that it is no doubt true that the appeal preferred by the petitioner before the Appellate Authority was dismissed as barred by limitation. In this context a perusal of the order of the Appellate Authority dated 12.10.2023 will indicate that the merits of the claim of the petitioner for revocation of the GST cancellation has not been examined by the Appellate Authority which has proceeded to summarily dismiss the appeal as barred by limitation. It is needless to state that if an appeal is dismissed as barred by limitation it is no appeal in the eye of law and dismissal of the appeal as barred by limitation would not result in merger of the order of the original authority with the order of the Appellate Authority. Merely because appeal preferred by the petitioner was dismissed by the Appellate Authority vide impugned order at Annexure D dated 31.08.2023 it cannot be said that this Court is denuded of its power or jurisdiction to examine the claim of the petitioner under Article 226 of the Constitution of India or to examine the legality validity and correctness of the order of the original authority under Article 226 of the Constitution of India. Whether any indulgence is to be shown to the petitioner in the facts and circumstances of the instant case so as to enable the petitioner to seek revocation of the GST cancellation in its favour? - HELD THAT - It is relevant to state that the petitioner has specifically contended that its inability and omission to file its returns within the prescribed / stipulated period was due to bona fide reasons unavoidable circumstances and sufficient cause. Under these circumstances in the light of the specific assertion on the part of the petitioner that petitioner would pay the entire outstanding tax dues together with interest subject to availment of Input Tax Credit and in the peculiar / special facts and circumstances of the instant case it is deemed just and appropriate to exercise jurisdiction under Article 226 of the Constitution of India and the impugned Order-in-original at Annexure C dated 10.01.2023 is set aside and the matter remitted back to the respondent for consideration of the claim of the petitioner for revocation of GST cancellation after providing sufficient and reasonable opportunity to the petitioner. Matter is remitted back to the respondent for consideration of the claim of the petitioner for revocation of GST cancellation of the petitioner Society - petition allowed by way of remand.

Summary

Issues:
Petition seeking writ of Mandamus to quash impugned order canceling GST registration and seeking revocation of cancellation. Appeal dismissed as barred by limitation. Examination of merits of revocation claim by Appellate Authority. Jurisdiction of High Court under Article 226 to examine legality of original authority's order. Consideration of revocation due to bona fide reasons and payment of outstanding tax dues.

Analysis:
The petitioner filed a petition seeking a writ to quash the impugned order canceling their GST registration and requesting revocation of the cancellation. The petitioner's appeal before the Appellate Authority was dismissed as barred by limitation, without examining the merits of the revocation claim. The High Court noted that if an appeal is dismissed as barred by limitation, it does not result in the merger of the original authority's order with the appellate order, allowing the original order to be challenged under Article 226 of the Constitution.

The High Court asserted its jurisdiction under Article 226 to examine the legality of the original authority's order despite the dismissal of the appeal by the Appellate Authority. The petitioner contended that their failure to file returns was due to bona fide reasons and requested to pay outstanding tax dues with interest, subject to Input Tax Credit. Considering the circumstances, the Court set aside the impugned order and remitted the matter back to the respondent for reconsideration of the revocation request, providing a reasonable opportunity to the petitioner.

In the final order, the High Court allowed the petition, set aside the impugned order canceling the GST registration, and remitted the matter to the respondent for further consideration of the revocation claim. The petitioner was granted liberty to file necessary documents, and the respondent was directed to provide a reasonable opportunity and proceed in accordance with the law. The petitioner undertook to appear before the respondent on a specified date, and the respondent was instructed to hear and pass orders on the claim within three months from the appearance of the petitioner.