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TMI Blog2023 (2) TMI 930X X X X Extracts X X X X X X X X Extracts X X X X ..... n. The composition permission was effected from 26.12.2021. It is say of the petitioner that he did not make any supply by making use of such composition permission. 2.2 In March, 2022, the petitioner got an export order pursuant to which the petitioner exported the goods being wholly unaware that it was operating under the composition permission and it was not entitled to export goods under such permission. Respondents also accepted the Letter of Undertaking for allowing without payment of tax. 2.3 It is further averred that the petitioner since came to know of the error committed while applying the registration under the GST at the time of filing return in the month of March 2022. He immediately filed an application for withdrawal from composition levy on 8.4.2022. It cited the export transaction as the reasons for the withdrawal. However, the application for withdrawal was possible on the portal only with prospective effect. 3. The grievance on the part of the petitioner is composition permission was withdrawn with effect from 8.4.2022 i.e. the date on which the application of the petitioner was made. The portal did not allow him to retrospectively withdraw from the compositi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... relief(s) as deemed fit in the facts and circumstances of the case may kindly be granted in the interest of justice for which act of kindness your petitioner shall forever pray. 8. This Court issued Notice on 20th July, 2022 [Coram: Mr. N.V.Anjaria & Mr. Bhargav D.Karia, JJ). 9. Affidavit-in-reply on behalf of the respondent Nos. 1, 2 & 3 filed by the Principal Commissioner, Central Goods & Services Act and Central Excise, Commissioner, Vadodara I, has challenged some of the versions put forth by the petitioner by stating that he has taken GST registration under composition scheme with effect from 26.12.2021. If the petitioner had erroneously taken the GST registration under composition scheme and was under impression that petitioner was registered as normal/regular taxpayer, then petitioner was supposed to file the GST returns prescribed for normal and regular taxpayer i.e. GSTR-1M/GSTR-1Q and GSTR- 3BM/GSTR-3B Q, for the period from the date of registration i.e. 26.12.2021 till that date when it became aware that petitioner is registered under Composition Scheme under Section 10 of the CGST Act, 2017. The petitioner would have come to know of the said mistake on 20.1.2022 i.e. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rn defaulter under Section 46 of CGST Act for not filing of returns. It is also admitted that there is no such functionality available in the GST-ACES System Dash Board. It is confirmed by the GST-ACES-System Operator vide its email dated 29.7.2022. It is also submitted that there is no provision under the CGST Act or Rules to change the petitioner's registration status, upon receiving application, from the composition taxpayer to regular taxpayer retrospectively . 10. It is also further contended by the respondents that the petitioner is very well aware about their registration status. The request made by the petitioner was not as per CGST Act, the department cannot be alleged a taxpayer of having deprived a taxpayer from the benefit given under Section 10 of CGST Act, 2017 unless and until, the taxpayer has breached the conditions and therefore, the reliefs as claimed by the petitioner are beyond the law and as there is no cause of action arising for such breach. 11. Rejoinder affidavit has been filed by the petitioner which may not be required to be amplified at this stage. Suffice to note that except the reference of Rule 6(2) of the CGST Rule, 2017 which supports the case of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... recting the assessee to pay tax as regulated under the provisions of the Act, if the option exercised was found to be incorrect. 14. The only question that is required to be addressed by this Court is the application before the jurisdictional officer dated 16.6.2022 which requested for cancellation of composition permission with effect from 1.3.2022 to enable the petitioner to file the returns as regular taxable person under the GST Act could have been denied. 15. The Petitioner's composite permission was effective from 26.12.2021. According to him, it never had supplied by making use of such composition permission be that it may, it had already filed the return which had expected to file in the month of January. 16. Prescribed for those who are availing the composition benefit, admittedly the petitioner has filed CMP-08 returns but not the GSR 1M/GSTR-1Q and GSTR 3B/M/GSTR-3B Q returns which are meant for for regular/normal taxpayers for the period from the date of registration i.e. 26.12.2021 till the date it applied for cancellation to say that it was not aware of the registration under the composition scheme under Section 10 of CGST Act is not something believable and to say ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rom the date of export transaction. It is different aspect that it will be for the authority concerned then to decide as to in what manner, he would be liable to pay tax but, that would enable the petitioner to file the returns and pay the taxes as regular taxable persons. The limitation of the software should not become the limitation of the implementation of the statue which otherwise is quite clear on this aspect. Even without entering into the intent of the party concerned his request for cancellation of his composition permission granted under Section 10 of the CGST Act with effect from 16th March, 2022 shall need to redress. The jurisdiction officer has also been categorical of his inability to so permit for want of the options available in the software The helpdesk automatic response did not help him actually only on account of this limitation. Therefore, to that extent, the petitioner is within his right to seek direction to cancell his composition permission with effect from his having made the expert on 16th March, 2022. While acceding to his request of such permission to be treated to have been cancelled from 16th March, 2022. We also direct the respondent-authority to t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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