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TMI Blog2014 (4) TMI 689X X X X Extracts X X X X X X X X Extracts X X X X ..... e appellant herein had already withdrawn the application for cancellation of registration much prior to the communication of the order dated 17/02/2009 as well as much prior to the communication of the earlier order, if any, in cancelling the registration?" (C) "Whether while passing the order under Section 27(1) of the Gujarat Value Added Tax Act, 2003 cancelling the registration on the application submitted by the registered dealer, the said order is required to be communicated to the registered dealer and what will be the consequence of the non communication of the decision of cancellation of the registration passed under Sub Section (3) of Section 27 of the Act?" 2. Tax Appeal arises in the following factual background : 2.1 The appellant herein is a proprietary concern registered under the Gujarat Value Added Tax Act, 2003 {"VAT Act" for short} vide registration No. 24221800911 since 17th December 1991. From 1st April 2006, the appellant chose not to carry on the business, and therefore, on 30th October 2007, applied for cancellation of the registration with effect from the very date, which is 30th October 2007. 2.2 It is averred by the appellant that nothing was heard fro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hey raise a central issue as to what would be the effect of withdrawal of application seeking cancellation of registration before the order of conciliation passed on an application under section 27 (1) of Gujarat VAT Act is communicated ? 6. On issuance of notice, the respondent appeared and filed affidavitinreply wherein it is contended inter alia that the appellant ceased to carry out the business from 1st April 2006. The application moved on 30th October 2007 for cancellation should be deemed to have been accepted. The application moved subsequently had no bearing in as much as the earlier application was already given effect. It is further contended that Section 27(3) of the VAT Act would not require to provide any opportunity of hearing for passing an order of cancellation and even if application for cancellation is subsequent, the cancellation of registration would be effective from the date of discontinuation of the business. It is also the contention on the part of the respondent that surrendering of the registration certificate was a must alongwith an application, as per the provision of law and that therefore, any subsequent transaction on the part of the appellant is co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... September 2007. This application moved under subsection (8) of Section 27 require the respondent authorities to cancel the registration. It would be profitable to reproduce, at this stage, the provisions of Section 27, which reads thus " 27. Suspension or cancellation of registration [ 1] Where ( a) any business in respect of which a certificate of registration has been issued to a dealer under this Act is discontinued; (b) in the case of transfer of whole business by a dealer, the transferee already hold a certificate of registration under this Act; (c) an incorporated body has been wound up or it otherwise ceases to exist; (d) the owner of a proprietorship business dies leaving no successor to carry on the business; (e) in case of a firm or association of persons, it is dissolved, or (ee) a dealer changes his place of business situated within the jurisdiction of one authority to a different place falling under the jurisdiction of another authority. Explanation - For the purpose of this clause, the 'authority' means the authority prescribed under subsection (3) of section 21; (f) a dealer has ceased to be liable to tax under this Act :the Commissioner may cancel the certif ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed under subsection (1) of section 26; (b) has failed to furnish return under section 29; (c) has failed to pay tax under section 30; (d) has failed to file declaration or intimate the changes as required under section 65 or 66; or (e) has failed to produce the books of account required under section 67, the Commissioner may, at any time, for reasons to be recorded in writing and after giving the dealer an opportunity of being heard, suspend his certificate of registration from such date not earlier than the date of order of suspension, as may be specified by him in the order. (2) where a dealer, whose certificate of registration is suspended for the failure of any of the requirements specified in subsection (1), fulfills the requirements, the Commissioner shall, by an order in writing, withdraw the suspension order from such date as may be specified therein. (3) the dealer whose certificate of registration is suspended under subsection (1) shall not be entitled to claim input tax credit during the period of suspension of registration. (6) Every person whose registration is cancelled under subsection (5) shall pay in respect of every taxable goods held as stock on the date o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f such dealer requires to be cancelled. 10.1 Subsection (5) of Section 27 authorizes the Commissioner to cancel the certificate of registration on any of the grounds provided under subsection (1) of Section 27. The Commissioner in such circumstances avails an opportunity to the dealer of being heard and cancels certificate of registration from such date as may be specified by him. 10.2 Subsection (7) of Section 21 also provides that in the event of any business in respect of which certificate of registration had been issued has been discontinued or transferred, the dealer, if applies in the prescribed manner for cancellation of registration, the prescribed authority shall cancel the registration with effect from such date as he may fix in accordance with the Rules. 11. Thus, in case of a registered dealer, there are different modes specified by the statute by which the cancellation can be effected. Business in respect of which certification of registration has been issued to a dealer discontinues, the Commissioner may cancel certificate of registration of such dealer from such date as may be prescribed by the authority. On account of discontinuance of his business, a registered ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 8 seeking withdrawal of his earlier application for cancellation of registration on account of his having received certain business reached to the concerned authority. We notice, as mentioned hereinbefore, that in the interregnum period, no order of cancellation was passed on his application dated 30/10/2007. Although, it is contended by the respondent authority that such order was passed, the order passed on the first communication was undated. Neither from the material on the record nor from the affidavitinreply, the respondent could satisfy us of passing of such order before the application for withdrawal of the earlier application for cancellation of registration reached to the authority. Admittedly, there has been no communication of such undated order of cancellation and the said order is communicated on 27th February 2009 where the cancellation had been made effective from 30th September 2007, a month prior to the date of the application which is the date of discontinuation of business of appellant. 11.3 It is also apparent from the pleadings as also from the submissions made by both the sides that the official website of the respondent continued to reflect the status of th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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