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TMI Blog2022 (10) TMI 676X X X X Extracts X X X X X X X X Extracts X X X X ..... It is observed that the order of cancellation of registration was passed with effect from 15.10.2019 and in terms of Section 107 the petitioner was required to file the appeal within three months from the date of communication of the order and further condonable period available was one month therefrom. In the present case total period lapsed on 14.02.2020 - The Hon ble Supreme Court of India in PRAKASH CORPORATES VERSUS DEE VEE PROJECTS LIMITED [ 2022 (2) TMI 1268 - SUPREME COURT ] took cognizance of unprecedentedly unfavourable and unpleasant situation faced by entire humanity from or around the month of December 2019. The Appellate Authority, while passing order on 07.10.2021, had no occasion to take into consideration the orders of the Hon ble Court more particularly Cognizance for Extension of Limitation, In re, [ 2022 (1) TMI 385 - SC ORDER ]. An identical fact-situation arose before the Hon ble Gujarat High Court [ 2022 (4) TMI 751 - GUJARAT HIGH COURT ], where the Appellate Authority did not entertain appeal on the ground of limitation qua cancellation of registration being made on 10.07.2019. It is pertinent to say that writ petition is maintainable challenging the order ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the said Act, has cancelled the registration (Annexure-4). 2. Fact leading the petitioner to approach this Court to beseech invocation of extraordinary jurisdiction under the provisions of Article 226/227 of the Constitution of India, 1950, is that by referring to reply dated 31.08.2019 submitted by the petitioner in pursuance of terms of Show Cause Notice dated 21.08.2019, the Superintendent of Ganjam-I Circle in Berhampur-I Range without assigning any reason proceeded to cancel the registration, GSTIN: 21ALPPP8146E2ZY on 15.10.2019 invoking provisions of Section 29(2)(c) of the CGST Act with effect from 15.10.2019 inasmuch as there was non-filing of returns for consecutive period of six months. 2.1. Instead of seeking revocation of cancellation of registration under Section 30 of the CGST Act before the proper officer, assailing aforementioned order dated 15.10.2019, the petitioner preferred appeal under Section 107 of the CGST Act on 05.08.2021 with a delay of around 660 days which came to be rejected on 07.10.2021. 2.2. It is submitted by the counsel for the petitioner that while the Appellate Authority made an observation in his Appellate Order that application for revocat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e to lack of awareness regarding nuances of "strict compliance" of new taxation policy, they could not file their returns in time. Such difficulties were multiplied by outbreak of Severe Acute Respiratory Syndrome-associated corona virus (SARS-CoV) leading to COVID-19 pandemic. Consequently, such situation was declared force majeure which led to promulgation of Section 168A by way of the CGST (Amendment) Act, 2020 granting power to the Government to extend time limit in special circumstances. 2.6. It is, therefore, argued by the counsel for the petitioner that the Appellate Authority was not powerless to grant opportunity to the petitioner to deposit tax, interest coupled with penalty and late fee and relegate him to approach the Registering Authority under Section 30 of the CGST Act by condoning the delay as has been done by this Court in very many cases, namely in the case of Nirmani Engineers and Constructions Pvt. Ltd. Vrs. The Commissioner of CT&GST, Odisha and Others, W.P.(C) No.15934 of 2021, wherein vide Order dated 05.05.2021, this Court has observed as follows: "2. Mr. Sunil Mishra, learned Additional Standing Counsel for Opposite Parties appearing on an advance notice ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ty by passing a common order, as a consequence of which taxpayers even though are ready to deposit tax, interest and penalty with late fee and also furnish return(s), they are deprived of availing such advantage as is bestowed in the aforementioned notifications. Since the Bar sought to address the issue, this Court asked Sri Rudra Prasad Kar, Advocate to render assistance in this regard. 3.1. Mr. Rudra Prasad Kar, learned Advocate has placed the following suggestions by way of short note dated 25.08.2022: "GST law being, a New Act, assessees are facing the difficulties in switching to procedural compliance electronically through internet on the GST Web-Portal. Considering the hardship faced by the assessees and more specifically due to COVID-19 pandemic, various amnesty schemes were introduced by the Government of India to ease the technical and procedural complicacies faced by the assessees. The provisions of the GST enactments and the rules made thereunder, read with various clarifications issued by the Central Government, pursuant to the decision of the GST Council and the Notification issued thereunder, also makes it clear that the intention is only to facilitate business a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er. 2. Accordingly, the GST Authorities/Concerned Officers may be directed to consider the application of revocation and allow the assessees to comply with the statutory requirements namely filing of returns, deposit of tax, interest, penalty and late fee within a further period of one month. 3. Authorities to take a pragmatic view and restore the R.Cs. It is submitted that the Government will not be put to any pecuniary loss/revenue loss, rather the above suggestions and directions of this Hon'ble Court will be in the larger interest of trade, commerce and economic growth of the nation." 4. Mr. Rudra Prasad Kar, learned Advocate, brought attention of this Court to the Judgment of Hon'ble Madras High Court rendered in the case of Tvl. Suguna Cutpiece Center Vrs. The Appellate Authority and Another, W.P.(C) No.25048 of 2021, etc. etc., vide Order dated 31.01.2022 reported at 2022 (61) GSTL 515 (Mad) to demonstrate that in the said Judgment a batch of matters qua certain taxpayers, having failed to furnish returns, registration certificates had been cancelled in the years 2018 and 2019 in terms of Section 29(2)(c), and their appeals have also been rejected by the Appellate Au ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ct. The levy of tax on goods and services is being made by the Central Government under the provisions of the CGST Act, 2017 and concurrent power has been conferred on the State Government to levy goods and services tax under the provisions under the OGST Act. Relevant provisions involved for facilitating adjudication of the issue raised in the present case do require to be mentioned. Section 29 "Cancellation or suspension of registration.- (1) *** (2) The proper officer may cancel the registration of a person from such date, including any retrospective date, as he may deem fit, where,- (a) a registered person has contravened such provisions of the Act or the rules made thereunder as may be prescribed; or (b) a person paying tax under Section 10 has not furnished returns for three consecutive tax periods; or (c) any registered person, other than a person specified in Clause (b), has not furnished returns for a continuous period of six months; or (d) any person who has taken voluntary registration under sub-section (3) of Section 25 has not commenced business within six months from the date of registration; or (e) registration has been obtained by means o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... od of thirty days from the date of application submitted under Rule 20 or, as the case may be, the date of the reply to the show cause issued under sub-rule (1), cancel the registration, with effect from a date to be determined by him and notify the taxable person, directing him to pay arrears of any tax, interest or penalty including the amount liable to be paid under sub-section (5) of Section 29. (4) Where the reply furnished under sub-rule (2) is found to be satisfactory, the proper officer shall drop the proceedings and pass an order in Form GST REG-20: Provided that where the person instead of replying to the notice served under sub-rule (1) for contravention of the provisions contained in clause (b) or clause (c) of subsection (2) of Section 29, furnishes all the pending returns and makes full payment of the tax dues along with applicable interest and late fee, the proper officer shall drop the proceedings and pass an order in Form GST-REG 20. (5) The provisions of sub-rule (3) shall, mutatis mutandis, apply to the legal heirs of a deceased proprietor, as if the application had been submitted by the proprietor himself." Rule 23 "Revocation of cancellation of re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ule (1) should not be rejected and the applicant shall furnish the reply within a period of seven working days from the date of the service of the notice in Form GST REG-24. (4) Upon receipt of the information or clarification in Form GST REG-24, the proper officer shall proceed to dispose of the application in the manner specified in sub-rule (2) within a period of thirty days from the date of the receipt of such information or clarification from the applicant." 7. The Hon'ble Gujarat High Court in the case of Aggarwal Dyeing and Printing Works Vrs. State of Gujarat & 2 Other(s), R/Special Civil Application No. 18860 of 2021, vide Judgment dated 24.02.2022 discussed the provisions enshrined for registration with reference to the rules framed thereunder in the following manner: "8.1 Scheme of the Act: *** The related provisions for certificate of registration and its cancellation, under the said Act are as under: i. Section 2(107) defines the term "taxable person" means a person who is registered or liable to be registered under Section 22 or Section 24. ii. Chapter VI pertains to Registration. Section 22 provides for person liable for registration. Section 23 perta ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... b) the business has been discontinued, transferred fully for any reason including death of the proprietor, amalgamated with other legal entity, demerged or otherwise disposed of; c) there is any change in the constitution of the business; d) the taxable person (other than the person who has voluntarily taken registration under sub-section (3) of Section 25 of the CGST Act, 2017) is no longer liable to be registered; e) a registered person has contravened such provisions of the Act or the rules made thereunder; f) a person paying tax under composition levy has not furnished returns for three consecutive tax periods; g) any registered person, other than a person paying tax under composition levy has not furnished returns for a continuous period of six months; h) any person who has taken voluntary registration under sub-section (3) of Section 25 has not commenced business within six months from the date of registration; i) registration has been obtained by means of fraud, willful misstatement or suppression of facts. 9.2 The procedure for cancellation of registration can be summarized as under: i. A person already registered under any of the existing law ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... able person shall pay an amount equal to the input tax credit taken on the said capital goods or plant and machinery, reduced by such percentage as may be prescribed or the tax on the transaction value of such capital goods or plant and machinery under Section 15, whichever is higher. viii. The cancellation of registration shall not affect the liability of the person to pay tax and other dues for any period prior to the date of cancellation whether or not such tax and other dues are determined before or after the date of cancellation. 9.3 At the same time, the statute also provides for revocation of cancellation: i. When the registration has been cancelled by the Proper Officer (Superintendent of Central Tax) on his own motion and not on the basis of an application, then the registered person, whose registration has been cancelled, can submit an application for revocation of cancellation of registration, in Form GST REG-21, to the Proper Officer (Assistant or Deputy Commissioners of Central Tax), within a period of thirty days from the date of the service of the order of cancellation of registration at the common portal, either directly or through a Facilitation Centre not ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Services Tax Act. 10. Thus, upon appreciation of the scheme of Act, where specific forms have been prescribed at each stage right from registration, cancellation and revocation of cancellation of registration, the same are to be strictly adhered to. At the same time, it is equally important that the proper officer empowered under the said Act adheres to the principles of natural justice. 11. At the outset, we notice that it is settled legal position of law that reasons are heart and soul of the order and noncommunication of same itself amounts to denial of reasonable opportunity of hearing, resulting in miscarriage of justice. ***" 7.1. A conjoint reading of the provisions referred to above juxtaposed with provisions contained in Section 39 read with Rule 61 would clearly indicate that the petitioner is bound to file return for the month concerned on or before the 20th of the succeeding month concerned. Further a reading of Section 29(2)(c) of the CGST Act would also disclose that it is mandated by the Legislature that if there is continuous default of six months on the part of the assessee in filing returns, then the competent authority can invoke the power conferred under ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... been held in the said order that in cases where the limitation would have expired during the period between 15.03.2020 till 14.03.2021, notwithstanding the actual balance period of limitation remaining, all persons shall have limitation period of 90 days from 15.3.2021. 10.1 It is also noted that the Hon'ble Supreme Court in its order dated 27.04.2021 has restored its earlier order dated 08.03.20 21 in view of the extraordinary situation caused by the second outburst of COVID-19 virus. Hon'ble Supreme Court has ruled that in continuation of the order dated 8th March, 2021 direct that the period(s) of limitation, as described under any general or special laws in respect of all judicial or quasi-judicial proceedings, whether condonable or not shall stand extended till further orders. Hon'ble Supreme Court has further clarified that the period from 14th March, 2021 till further orders shall also stand excluded in computing the limitation period. 10.2 In pursuance of the orders of the Hon'ble Supreme Court, Central Board of Indirect Taxes and Customs (CBIC) has issued a circular No. 157/13/2021-GST dated 20.07.2021. In the said circular, it is clarified that period of limitation ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in this notification referred to as the said Act), the Central Government, on the recommendations of the Council , and in supersession of the notification of the Government of India in the Ministry of Finance, Department of Revenue No. 28/2017 - Central Tax, dated the 1st September, 2017 published in the Gazette of India, Extraordinary, Part II, Section 3, sub-section (i) vide number G.S.R. 1126 (E), dated the 1st September, 2017, notification of the Government of India in the Ministry of Finance, Department of Revenue No. 50/2017- Central Tax, dated the 24th October, 2017, published in the Gazette of India, Extraordinary, Part II, Section 3, sub-section (i) vide number G.S.R. 1326 (E), dated the 24th October, 2017 and notification of the Government of India in the Ministry of Finance (Department of Revenue) No. 64/2017- Central Tax, dated the 15th November, 2017, published in the Gazette of India, Extraordinary, Part II, Section 3, subsection (i) vide number G.S.R.1420(E), dated the 15th November, 2017, except as respects things done or omitted to be done before such supersession, hereby waives the amount of late fee payable by any registered person for failure to furnish the ret ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on 47 of the said Act shall stand waived which is in excess of two hundred and fifty rupees for the registered persons who failed to furnish the return in Form GSTR-3B for the months/quarter of July, 2017 to April, 2021, by the due date but furnish the said return between the period from the 1st day of June, 2021 to the 31st day of August, 2021: Provided also that the total amount of late fee payable under Section 47 of the said Act for the tax period June, 2021 onwards or quarter ending June, 2021 onwards, as the case may be, shall stand waived which is in excess of an amount as specified in column (3) of the Table given below, for the class of registered persons mentioned in the corresponding entry in column (2) of the said Table, who fail to furnish the returns in Form GSTR-3B by the due date, namely: - S. No. (1) Class of registered persons (2) Amount (3) 1. Registered persons whose total amount of central tax payable in the said return is nil Two hundred and fifty rupees 2. Registered persons having an aggregate turnover of up to rupees 1.5 crores in the preceding financial year, other than those covered under S. No. 1 One thousand rupees 3. Taxpayers ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 019 took a decision. Pursuant to aforesaid decision, the Central Government, on recommendations of the GST Council, in exercise of power conferred under Section 172 of the Central Goods and Services Tax Act, 2017, inserted a proviso to Section 30(1) of the respective GST enactments vide Order No.5/2019-GST, Central Board of Indirect Taxes and Customs, dated 23.04.2019. Thus, Proviso to Section 30(1) of the Act read as under: "Provided that the registered person who was served notice under sub-section (2) of Section 29 in the manner as provided in clause (c) or clause (d) of sub-section (1) of Section 169 and who could not reply to the said notice, thereby resulting in cancellation of his registration certificate and is hence unable to file application for revocation of cancellation of registration under sub-section (1) of Section 30 of the Act, against such order passed up to 31.03.2019, shall be allowed to file application for revocation of cancellation of the registration not later than 22.07.2019." 175. This was a novel and an unconventional method adopted to amend the Act. It was contrary to the well-established procedure under the Constitution and Law for amending a stat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n the recommendations of the Council, in the exercise of power conferred under Section 172 of the Central Goods and Services Tax Act, 2017, issued the Central Goods and Services Tax (Removal of Difficulties) Order, 2020 vide Order No.01/2020-Central Tax, Central Board of Indirect Taxes and Customs, dated 25.06.2020. Relevant portion of the said Notification reads as under: 1. Short title.- This Order may be called THE CENTRAL GOODS AND SERVICES TAX (REMOVAL OF DIFFICULTIES) ORDER, 2020. 2. For the removal of difficulties, it is hereby clarified that for the purpose of calculating the period of thirty days for filing application for revocation of cancellation of registration under sub-section (1) of Section 30 of the Act for those registered persons who were served notice under clause (b) or clause (c) of sub-section (2) of Section 29 in the manner as provided in clause (c) or clause (d) of sub-section (1) of Section 169 and where cancellation order was passed up to 12th June, 2020, the later of the following dates shall be considered: a) Date of service of the said cancellation order; or b) 31st day of August, 2020. 187. The amnesty in the above Government Orde ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Customs, dated 18.05.2021. *** 194. The above amendment however did not address the case of the petitioners whose registrations were cancelled after 31.03.2019 and before the above amendment to the Act as Rules with effect from 01.01.2021. *** 196. These petitioners had only one option to file an application within a period of 30 days from the date of service of the order of cancellation of registration under Section 30(1) of the Act which had expired long back. 197. Still later, in view of the prevailing situation, Notification No.34/2021- Central Tax, Central Board of Indirect Taxes and Customs, dated 29.08.2021 was issued by the Central Government once again on the recommendation of the GST Council. Notification No.34/2021- Central Tax, Central Board of Indirect Taxes and Customs, dated 29.08.2021 which reads as under: Government of India Ministry of Finance (Department of Revenue) Central Board of Indirect Taxes and Customs Notification No. 34/2021- Central Tax New Delhi, the 29th August, 2021 G.S.R.600(E).- In partial modification of the notifications of the Government of India in the Ministry of Finance (Department of Revenue), No. 35/2020-Central Tax, da ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gistration is extended to 30th September, 2021. Accordingly, it is clarified that the benefit of said notification is extended to all the cases where cancellation of registration has been done under clause (b) or clause (c) of sub-section (2) of Section 29 of the CGST Ac, 2017 and where the due date of filing of application for revocation of cancellation of registration falls between 1st March, 2020 to 31st August, 2021. It is further clarified that the benefit of notification would be applicable in those cases also where the application for revocation of cancellation of registration is either pending with the proper officer or has already been rejected by the proper officer. It is further clarified that the benefit of notification would also be available in those cases which are pending with the appellate authority or which have been rejected by the appellate authority. In other words, the date for filing application for revocation of cancellation of registration in all cases, where registration has been cancelled under clause (b) or clause (c) of sub-section (2) of Section 29 of CGST Act, 2017 and where the due date of filing of application for revocation of cancellation of regis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... has extended the due date in respect of initial period of 30 days for filing the application (in cases where registration has been cancelled under clause (b) or clause (c) of sub-section (2) of Section 29 of CGST Act, 2017) under sub-section (1) of Section 30 of the CGST Act or whether the due date of filing applications for revocation of registration can be extended further for the period of 60 days (30 + 30) by the Joint Commissioner/ Additional Commissioner/ Commissioner, as the case may be, beyond the extended date of 30.09.2021. It is clarified that: (i) where the thirty days' time limit falls between 1st March, 2020 to 31st December, 2020, there is no provision available to extend the said time period of 30 days under Section 30 of the CGST Act. For such cases, pursuant to the said notification, the time limit to apply for revocation of cancellation of registration stands extended up to 30th September, 2021 only; and (ii) where the time period of thirty days since cancellation of registration has not lapsed as on 1st January, 2021 or where the registration has been cancelled on or after 1st January, 2021, the time limit for applying for revocation of cancellation of reg ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e to be heard and disposed off and the same will be governed by those extensions of time granted by the statues or notifications, if any. c) Appeals by taxpayers/ tax authorities against any quasi-judicial order: Wherever any appeal is required to filed before Joint/ Additional Commissioner (Appeals), Commissioner (Appeals), Appellate Authority for Advance Ruling, Tribunal and various courts against any quasi-judicial order or where a proceeding for revision or rectification of any order is required to be undertaken, the time line for the same would stand extended as per the Hon'ble Supreme Court's order." 202. Meanwhile, the Hon'ble Supreme Court taking note of the hardship faced by the litigants had also extended the limitation by its orders dated 23.03.2020, 08.04.2021, 27.04.2021 & 23.09.2021 in Recognizance of Extension of Limitation, in Miscellaneous Application No.665/2021 in SMW(C) No.3/2020. 203. In its order dated 23.09.2021 in the above case, 2021 SCC OnLine SC 947, the Hon'ble Supreme Court held as under:- Therefore, we dispose of the M.A. No. 665 of 2021 with the following directions:- I. In computing the period of limitation for any suit, appeal, applic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ve extended up to the 30th day of September, 2021." 8.8. In the context of limitation fixed for filing written statement under the Code of Civil Procedure, 1908, in the case of Prakash Corporates Vrs. Dee Vee Projects Ltd., (2022) 5 SCC 112 = (2022) 1 SCC (L&S) 771 = 2022 SCC OnLine SC 180 it has been stated as follows: "21. While explaining the sweep and mandate of these provisions, this Court said : (SCG Contracts (India) (P) Ltd. Vrs. K.S. Chamankar Infrastructure (P) Ltd., (2019) 12 SCC 210 = (2020) 1 SCC (Civ) 237, SCC p. 214, para 8) "8. … A perusal of these provisions would show that ordinarily a written statement is to be filed within a period of 30 days. However, grace period of a further 90 days is granted which the Court may employ for reasons to be recorded in writing and payment of such costs as it deems fit to allow such written statement to come on record. What is of great importance is the fact that beyond 120 days from the date of service of summons, the defendant shall forfeit the right to file the written statement and the court shall not allow the written statement to be taken on record. This is further buttressed by the proviso in Order 8 Rule 10 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rantine. 26. We need not elaborate on the havoc created by Covid-19 but the relevant aspect for the present purpose is that with Covid-19, the movement of persons and working of almost all the institutions landed in such difficulties which were neither foreseen nor guarded against. 27. When the movements and gatherings of persons were fraught with dangers and when lockdowns became inevitable, the institutions related with the task of administration of justice were also required to respond to the challenges thrown by this pandemic. In this regard, this Court, apart from taking various measures of containment, also took note of the practical difficulties of the litigants and their lawyers; and this led to the suo motu order dated 23.03.2020 in Cognizance for Extension of Limitation, In re, (2020) 19 SCC 10 = (2021) 3 SCC (Cri) 801. 27.1. In the consciously worded order dated 23.03.2020 [Cognizance for Extension of Limitation, In re, (2020) 19 SCC 10 = (2021) 3 SCC (Cri) 801], this Court, while taking note of the difficulties likely to be faced by the litigants in filing their petitions/applications/suits/appeals/ proceedings within the period of limitation, ordered that the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d suo motu petition with specific directions that while computing the period of limitation for any suit, appeal, application or proceeding, the period from 15.03.2020 to 14.03.2021 would stand excluded. Though the said order dated 08.03.2021 [Cognizance for Extension of Limitation, In re, (2021) 5 SCC 452 = (2021) 3 SCC (Civ) 40 = (2021) 2 SCC (Cri) 615 = (2021) 2 SCC (L&S) 50] was passed with a belief that the adverse effects of the pandemic were receding and normalcy was returning but, the spread of virus continued and this led to an exponential surge in Covid-19 cases; and to the second wave of pandemic in the country around the months of March-April 2021. In this turn of events, this Court again took up the matter in SMWP No. 3 of 2020 on MA No. 665 of 2021, as moved by the Supreme Court Advocates-on-Record Association and passed the necessary order on 27.04.2021 [Cognizance for Extension of Limitation, In re, (2021) 17 SCC 231 = 2021 SCC OnLine SC 373] in revival of the previous orders. 27.5. At this juncture, we are impelled to refer to the fact that much before passing of the order dated 27.04.2021 [Cognizance for Extension of Limitation, In re, (2021) 17 SCC 231 = 2021 S ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nnecessarily narrowed and rather, having regard to their purpose and object, full effect is required to be given to such orders and directions. [To complete the scenario, we may indicate in the passing that even after we had heard this matter, there had been re-surge of Covid-19 cases with spread of a new variant of the virus. The drastic re-surge in the number of Covid cases has led this Court to again deal with the matter in SMWP No. 3 of 2020 on an application bearing No. 21 of 2022; and by the order dated 10.01.2022 [Cognizance for Extension of Limitation, In re, (2022) 3 SCC 117 = (2022) 2 SCC (Civ) 46 = (2022) 1 SCC (Cri) 580 = (2022) 1 SCC (L&S) 501], this Court again restored the principal order dated 23.03.2020 [Cognizance for Extension of Limitation, In re, (2020) 19 SCC 10 = (2021) 3 SCC (Cri) 801] and in continuation of the previous orders, has further directed that the period from 15.03.2020 till 28.02.2022 shall stand excluded for the purposes of limitation as may be prescribed under any general or special laws in respect of all judicial or quasi-judicial proceedings. Be that as it may, the fresh order in SMWP No. 3 of 2020 need not be elaborated for the present purpo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... xtension of Limitation, In re, (2020) 19 SCC 10 = (2021) 3 SCC (Cri) 801] , 06.05.2020 [Cognizance for Extension of Limitation, In re, (2020) 19 SCC 9 = (2021) 3 SCC (Cri) 799], 10.07.2020 [Cognizance for Extension of Limitation, In re, (2020) 9 SCC 468] , 27.04.2021 [Cognizance for Extension of Limitation, In re, (2021) 17 SCC 231 = 2021 SCC OnLine SC 373] and 23.09.2021 [Cognizance for Extension of Limitation, In re, (2021) 18 SCC 250 = 2021 SCC OnLine SC 947] in SMWP No. 3 of 2020 leave nothing to doubt that special and extraordinary measures were provided by this Court for advancing the cause of justice in the wake of challenges thrown by the pandemic; and their applicability cannot be denied in relation to the period prescribed for filing the written statement. It would be unrealistic and illogical to assume that while this Court has provided for exclusion of period for institution of the suit and therefore, a suit otherwise filed beyond limitation (if the limitation had expired between 15.03.2020 to 02.10.2021) could still be filed within 90 days from 03.10.2021 but the period for filing written statement, if expired during that period, has to operate against the defendant. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Commission would be deemed to have been extended as it is clear from the order dated 23.03.2020 [Cognizance for Extension of Limitation, In re, (2020) 19 SCC 10 = (2021) 3 SCC (Cri) 801] that the extended period of limitation was applicable to all petitions/ applications/suits/appeals and all other proceedings. As such, the delay of four days in filing the written statements in the pending proceedings before the National Commission deserves to be allowed, and is accordingly allowed." *** 32.2. In fact, in S. Kasi Vrs. State, (2021) 12 SCC 1 = 2020 SCC OnLine SC 529, this Court also noticed that a coordinate Bench of the same High Court had already held [Settu Vrs. State, 2020 SCC OnLine Mad 1026] that the said order dated 23.03.2020 [Cognizance for Extension of Limitation, In re, (2020) 19 SCC 10 = (2021) 3 SCC (Cri) 801] did not cover the offences for which Section 167 CrPC was applicable but, in the order [S. Kasi Vrs. State, 2020 SCC OnLine Mad 1244] impugned, the other learned Single Judge of the same High Court took a view contrary to the earlier decision of the coordinate Bench; and that was found to be entirely impermissible. In any case, the said decision, concerning ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... "17. …What was extended by the above order [Cognizance for Extension of Limitation, In re, (2020) 19 SCC 10 = (2021) 3 SCC (Cri) 801] of this Court was only "the period of limitation" and not the period up to which delay can be condoned in exercise of discretion conferred by the statute. The above order [Cognizance for Extension of Limitation, In re, (2020) 19 SCC 10 = (2021) 3 SCC (Cri) 801] passed by this Court was intended to benefit vigilant litigants who were prevented due to the pandemic and the lockdown, from initiating proceedings within the period of limitation prescribed by general or special law. It is needless to point out that the law of limitation finds its root in two Latin maxims, one of which is vigilantibus et non dormientibus jura subveniunt which means that the law will assist only those who are vigilant about their rights and not those who sleep over them." 33.2. One of the significant facts to be noticed is that the said decision in Sagufa Ahmed Vrs. Upper Assam Plywood Products (P) Ltd., (2021) 2 SCC 317 = (2021) 2 SCC (Civ) 178 was rendered by a three-Judge Bench of this Court much before the aforesaid final orders dated 08.03.2021 [Cognizance ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pplications/suits/appeals/all other quasi proceedings within the period of limitation prescribed under the general law of limitation or under any special laws (both Central and/or State) due to the outbreak of the Covid-19 Pandemic. 2. On 23.03.2020, this Court directed [Cognizance for Extension of Limitation, In re, (2020) 19 SCC 10 = (2021) 3 SCC (Cri) 801] extension of the period of limitation in all proceedings before courts/tribunals including this Court w.e.f. 15.03.2020 till further orders. On 8-3-2021 [Cognizance for Extension of Limitation, In re, (2021) 5 SCC 452 = (2021) 3 SCC (Civ) 40 = (2021) 2 SCC (Cri) 615 = (2021) 2 SCC (L&S) 50] , the order dated 23-3-2020 [Cognizance for Extension of Limitation, In re, (2020) 19 SCC 10 = (2021) 3 SCC (Cri) 801] was brought to an end, permitting the relaxation of period of limitation between 15.03.2020 and 14.03.2021. While doing so, it was made clear that the period of limitation would start from 15.03.2021. 3. Thereafter, due to a second surge in Covid-19 cases, the Supreme Court Advocates-on-Record Association (SCAORA) intervened in the suo motu proceedings by filing Miscellaneous Application No. 665 of 2021 seeking restor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ce period of limitation remaining as on 03.10.2021, if any, shall become available with effect from 01.03.2022. 5.3. In cases where the limitation would have expired during the period between 15.03.2020 till 28.02.2022, notwithstanding the actual balance period of limitation remaining, all persons shall have a limitation period of 90 days from 01.03.2022. In the event the actual balance period of limitation remaining, with effect from 01.03.2022 is greater than 90 days, that longer period shall apply. 5.4. It is further clarified that the period from 15.03.2020 till 28.02.2022 shall also stand excluded in computing the periods prescribed under Sections 23(4) and 29-A of the Arbitration and Conciliation Act, 1996, Section 12-A of the Commercial Courts Act, 2015 and provisos (b) and (c) of Section 138 of the Negotiable Instruments Act, 1881 and any other laws, which prescribe period(s) of limitation for instituting proceedings, outer limits (within which the court or tribunal can condone delay) and termination of proceedings. 6. As prayed for by the learned Senior Counsel, MA No. 29 of 2022 is dismissed as withdrawn." 8.10. It is observed that the order of cancellation of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pra): "209. Thus, the intention of the Government has been to allow the persons like the petitioners to file a fresh application and to process the application for revocation of the cancellation of registration by the officers. 210. In my view, no useful purpose will be served by keeping these petitioners out of the bounds of GST regime under the respective GST enactments other than to allow further leakage of the revenue and to isolate these petitioners from the main stream contrary to the objects of the respective GST enactments. 211. The purpose of GST registration is only to ensure just tax gets collected on supplies of goods or service or both and is paid to the exchequer. Keeping these petitioners outside the bounds of the GST regime is a self-defeating move as no tax will get paid on the supplies of these petitioners. *** 221. While exercising jurisdiction, under Article 226 of the Constitution, the powers of the Court to do justice i.e., what is good for the society, can neither be restricted nor curtailed. This power under Article 226 can be exercised to effectuate the rule of law. 222. Therefore, power of this Court under Article 226 of the Constitution o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the cases of those petitioners as well, orders of revocation had been passed and some of the petitioners had approached the assessing authority in terms of Section 30 seeking revocation, some had appealed the orders of cancellation under Section 107 and others had merely approached this Court under Article 226 of the Constitution of India. 8. The learned Judge has considered interim events including the position that Amnesty Schemes had not been availed by those petitioners. In fine, the learned Judge accepts the case of the petitioners, imposing certain conditions in para 229 of the order. A specific query was put to the State Counsel as to whether order dated 31.01.2022 has attained finality. He brings to my notice a communication that has been addressed by the Additional Chief Secretary/Commissioner of Commissioner of Commercial Tax to the GST Council on 31.03.2022 seeking the view of the Council and its guidance/directions in regard to the order of this Court dated 31.01.2022." 8.13. An identical fact-situation arose before the Hon'ble Gujarat High Court, where the Appellate Authority did not entertain appeal on the ground of limitation qua cancellation of registration bei ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f revenue. Therefore, the opposite parties are required to take a pragmatic view in the matter. The introduction of GST regime presupposes hassle-free and citizen friendly taxation process and the taxpayer is not to be treated as a person hostile to the Department. It is but obvious that if the taxpayer adopts clandestine business and adopts dubious device to evade payment of tax, then he has to be dealt with sternly. 8.15. In such view of the matter, the writ petition is liable to be allowed with certain directions. 9. It is pertinent to say that writ petition is maintainable challenging the order in appeal, albeit the petitioner is entitled to carry the matter before the Appellate Tribunal under Section 112 of the CGST Act inasmuch as even after lapse of 5 years, the said Appellate Tribunal is not constituted under Section 109. 9.1. Pertinent here to refer to the ratio of Judgment laid down by the Hon'ble Supreme Court in the case of Mohamed Ali Vrs. V. Jaya & Others, 2022 SCC OnLine SC 817, in the context of maintainability of writ petition qua condonation of delay in preferring civil revision under Section 115 the Code of Civil Procedure, 1908 vis-a-vis availability of alter ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s of Code of Civil Procedure, and (ii) cases where such alternative remedy is available under special enactments and/or statutory rules and the fora provided therein happen to be quasi-judicial authorities and tribunals. In respect of cases falling under the first category, which may involve suits and other proceedings before civil courts, the availability of an appellate remedy in terms of the provisions of CPC, may have to be construed as a near total bar. Otherwise, there is a danger that someone may challenge in a revision under Article 227, even a decree passed in a suit, on the same grounds on which Respondents 1 and 2 invoked the jurisdiction of the High Court. This is why, a 3-member Bench of this Court, while overruling the decision in Surya Dev Rai Vrs. Ram Chander Rai, (2003) 6 SCC 675, pointed out in Radhey Shyam Vrs. Chhabi Nath, (2015) 5 SCC 423 = (2015) 3 SCC (Civ) 67 that "orders of civil court stand on different footing from the orders of authorities or tribunals or courts other than judicial/civil courts". 13. Therefore wherever the proceedings are under the Code of Civil Procedure and the forum is the civil court, the availability of a remedy under the CPC, wi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iling an appeal is not extendable, as in this case, was considered by the Full Bench of the Gujarat High Court in the case of Panoli Intermediate (India) Pvt. Ltd. Vs Union of India and others, 2015 SCC OnLine Guj 570 = AIR 2015 Guj 97 = (2015) 56 (2) GLR 1395 (FB) = (2015) 3 KLT (SN 40) 30 (F.B.) = (2015) 326 ELT 532 = (2016) 2 GLH 337 (FB), where the case was referred to the larger Bench for determining three questions. The third question is important for this case, which is quoted below: (3) When if the statutory remedy of appeal under Section 35 is barred by the law of limitation whether in a Writ Petition under Article 226 of the Constitution of India, the order passed by the original adjudicating authority could be challenged on merit? 6) The answer was given by the Hon'ble Full Bench of the Gujarat High Court in paragraph 31 of the said judgment, especially, in sub-paragraph (3). The Full Bench of the Hon'ble Gujarat High Court held that on the third question the answer is in affirmative, but with the clarification that A) The petition under Article 226 of the Constitution can be preferred for challenging the order passed by the original adjudicating authority in follo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f Section 109 read with Section 112, then it would tantamount to violation of provision enshrined under Article 21 of the Constitution of India as the right to livelihood springs from the right to life avowed under Article 21. 10. This Court, in the case of one of the parties, namely in the case of Suntony Signage Pvt. Ltd., whose registration under the CGST Act being cancelled and appeal being rejected on the ground of limitation by way of common order dated 07.10.2021, which order is subject-matter of challenge in the present writ, allowed the writ petition being W.P(C). No.41856 of 2021 [Suntony Signage Pvt. Ltd. Vrs. Principal Commissioner of Central Goods and Services Tax & Others] vide Order dated 12.07.2022 by setting aside said Appellate Order. In certain other cases, one of them being Nirmani Engineers and Constructions Pvt. Ltd. Vrs. The Commissioner of CT&GST, Odisha and Others, W.P.(C) No.15934 of 2021, vide Order dated 05.05.2021 condoning the delay in invoking proviso to Rule 23 of the Odisha Goods and Services Tax Rules, 2017, this Court allowed the petitioner therein to deposit tax, interest, penalty with late fee and furnish returns for the defaulted period. 11. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion of the petitioner which has been cancelled since 15.10.2019 and involves right to carry on business and sending the matter back to the Appellate Authority would further delay the process. It is taken into consideration that as the consequential effective step is required to be taken by the proper officer/Registering Authority/Superintendent, it is, therefore, deemed necessary instead of directing the Appellate Authority to do the needful, this Court requests the proper officer to grant opportunity to the petitioner for taking all required step to revive registration. Thus, writ of mandamus is liable to be issued keeping in mind the notifications and the suggestions put forth by Mr. Rudra Prasad Kar, learned Advocate. So does this Court in the present case to ensure ends of justice in the light of directions envisaged in Tvl. Suguna Cutpiece Center Vrs. The Appellate Authority and Another, 2022 (61) GSTL 515 (Mad) by the Madras High Court and Order dated 05.05.2021 of this Court in Nirmani Engineers and Constructions Pvt. Ltd. Vrs. The Commissioner of CT&GST, Odisha and Others, W.P.(C) No.15934 of 2021. 13. In the above premise, the following directions are, therefore, issued: ..... X X X X Extracts X X X X X X X X Extracts X X X X
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