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TMI Blog2023 (2) TMI 935X X X X Extracts X X X X X X X X Extracts X X X X ..... ed by the department. Application disposed off. - HONOURABLE THE CHIEF JUSTICE MS. JUSTICE SONIA GOKANI And HONOURABLE MR. JUSTICE SANDEEP N. BHATT MR HARDIK V VORA(7123) FOR THE PETITIONER MR TRUPESH KATHIRIYA, AGP FOR THE RESPONDENT(S) NO. 1 - STATE ORDER ( PER : HONOURABLE THE CHIEF JUSTICE MS. JUSTICE SONIA GOKANI ) 1. Petitioner is before this Court seeking to challenge the action of the respondent Authority of cancelling the registration and also of rejecting of application for revocation of cancellation under the Gujarat Goods and Service Tax Act, 2017. 2.1 The petitioner is a proprietary concern dealing in all types of scrap. It was granted TIN Number on 13.06.2013 under the Gujarat Value Added Tax Act, 2003 and he is a regular tax payer. 2.2 Show cause notice was issued on 24.06.2019 by the respondent by the cancellation of registration on the ground that it has been obtained by means of fraud and willful mistake and by suppression of facts. The petitioner was directed to appear on 28.06.2019, however, when no physical notice was received and as the petitioner is not techno savvy, he could not accede. 2.3 On 26.07.2019, pursuant ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of cancellation, the same shall be decided in a week s time. 2.6 The respondents were requested thereafter on 14.12.2021 for deciding the revocation application pursuant to the order of this Court. 2.7 Respondent No.3 had asked the petitioner to provide documentary evidence on or before 23.12.2021. The written submissions were made on 23.12.2021, making a request to revoke the order passed by the respondent for cancelling the GST registration, as he neither tampered with the document nor committed any fraud. It is his grievance that, without considering the submissions on 05.01.2022, without issuing the show-cause notice, the respondent has rejected the application for revocation and in the order, it has been mentioned that he is involved bogus billing with various parties. This was at no point of time event the part of show cause notice. 2.8 On the ground that the order passed is without providing the adequate opportunity to explain the transactions to various parties and also on further grounds, this petition is being preferred. The main prayers sought for are as follows : 5.1(a) A writ of mandamus, or any other appropriate writ, order and/or directions in the na ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... required in accordance with the law and further failed to produce any document to sustain registration under GST, the same has led to cancellation and further rejection of revocation. 4. We have heard learned advocate Mr.Hardik Vora for the petitioner and learned AGP Mr.Trupesh Kathiriya for the respondent State. 5.1 It is not in dispute from the record that in earlier petition - Special Civil Application No.4422 of 2021, the prayers sought for by the petitioner was to quash the order dated 26.07.2019 issued by the respondent for cancellation of registration under the GST Act. This Court had noticed that no procedure had been followed by the proper officer and had not chosen to issue any notice to show cause indicating his intention of rejection. Certain statutory rules, which provided the prescribed limit, were disregarded and therefore, this Court had acceded to the request of hearing the matter from the stage where it was left by giving the timeline for those stages is to be completed. 5.2 It appears that pursuant to this order dated 24.11.2021, we noticed that on 13.12.2021, a letter is addressed to the Commercial Tax Officer seeking the revocation of cancellation of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing laws, but who is not liable to be registered under the GST Act; b) the business has been discontinued, transferred fully for any reason including death of the proprietor, amalgamated with other legal entity, demerged or otherwise 11 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 subsection (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 registra ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... preceding the date of such cancellation or the output tax payable on such goods, whichever is higher. vii. In case of capital goods or plant and machinery, the taxable 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 points 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 Centra ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... evocation of cancellation of registration under the State Goods and Services Tax Act or the Union Territory Goods and Services Tax Act, as the case may be, shall be deemed to be a revocation of cancellation of registration under Central Goods and 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 too. 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 non communication of same itself amounts to denial of reasonable opportunity of hearing, resulting in miscarriage of justice. This Court is bound by the said judgments hereinafter referred to. The necessity of giving reason by a body or authority in support of its decision came for consideration before the Supreme Court in several cases. Initially, the Supreme Court recognized a sort of demarcation between administrative order ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e. i. Judicial or even quasi-judicial opinions these days can be as different as the judges and authorities who deliver them. All these decisions serve one common purpose which is to demonstrate by reason that the relevant factors have been objectively considered. This is important for sustaining the litigants' faith in the justice delivery system. j. Insistence on reason is a requirement for both judicial accountability and transparency. k. If a Judge or a quasi-judicial authority is not candid enough about his/her decision making process then it is impossible to know whether the person deciding is faithful to the doctrine of precedent or to principles of incrementalism. l. Reasons in support of decisions must be cogent, clear and succinct. A pretence of reasons or rubber-stamp reasons is not to be equated with a valid decision making process. m. It cannot be doubted that transparency is the sine qua non of restraint on abuse of judicial powers. Transparency in decision making not only makes the judges and decision makers less prone to errors but also makes them subject to broader scrutiny (See David Shapiro in Defence of Judicial Candor (1987) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... il and penal consequences pursuant to the impugned order of cancellation of certificate of registration. In all the writ applications we could note from the tabular details that the show cause notice though issued in the prescribed form does not elaborate the reasons and the one line reason mentioned is nothing but the reproduction of either of the reasons provide under rules regarding cancellation of registration. It appears from the materials on record that the respondent no.2 issued a show-cause notice dated 18th September, 2018 in the Form GST REG-17, calling upon the writ-applicant to show-cause as to why the registration under the GST should not be cancelled. Such notice issued by the respondent no.2 is under Rule 22(1) of the Central Goods and Services Tax Rules, 2017. The notice dated 18th September, 2018 referred to above reads as under : Form GST REG-17 [See Rule 22(1)] Reference Number : ZA240918027128D Date : 18/09/2018 To Registration no. (GSTIN/Unique ID) : 24AEXPA3306 SANJEEV PREM AGGARWAL SURVEY NO.230, OPP. MARIYA BANK, B/H RANIPUR VILLAGE, NAROL, Ahmedabad, Gujarat 382405. Show Cause Notice for Can ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he Rules governing the case, particularly, when an order being made is likely to have civil consequences. The Hon ble Supreme Court has emphasize up on the appellate court to have the approach tilting in favour of providing fair and reasonable opportunity of hearing while dealing with condonation of delay application in filing appeal. The relevant observation made by the Hon ble Supreme Court in the case of Jesus Sales Corporation (supra) in para 2, are as under : The Appellate authority may dispense with such deposit in its discretion. The proviso relating to the condonation for delay in filing the appeal is more or less on the pattern of Section 5 of the Limitation Act. Some how, a practice has grown throughout the country that before rejecting the prayer for condonation of delay in filing the appeal or application, opportunities are given to the appellants or petitioners, as the case may be, to be heard on the question whether such delay be condoned. Opportunities to be heard are also the contesting respondents in such appeals. In different statutes given to where power has been vested in the Appellate authority to condone the delay in filing such appeals or applications, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... te baffling. The learned AGP submitted that on account of technical glitches in the portal, the department is finding it very difficult to upload the show cause notice as well as the final order of cancellation of registration containing all the necessary details and information therein. According to the learned AGP, it is in such circumstances that the show cause notices and impugned orders without any details are being forwarded to the dealers. This hardly can be a valid explanation for the purpose of issuing such vague show cause notices and vague final orders cancelling the registration. 17. We direct that till the technical glitches are not cured, the department will henceforth issue show cause notice in a physical form containing all the material particulars and information therein to enable the dealer to effectively respond to the same. Such show cause notice in physical form shall be dispatched to the dealer by the RPAD. In the same manner, the final order shall also be passed in physical form containing all necessary reasons and the same shall be forwarded/communicated to the dealer by way of RPAD. Any lapse in this regard, henceforth shall be viewed very strictly. W ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... onsequential respective impugned orders cancelling registration with liberty to the respondent No. 2 to issue fresh notice with particulars of reasons incorporated with details and thereafter to provide reasonable opportunity of hearing to the writ applicants, and to pass appropriate speaking orders on merits. It is needless to mention that it shall be open for the writ applicants to respond to such notices by filing objections / reply with necessary documents, if relied upon. We clarify that we have not gone into merits of the case. Sd/- (J. B. PARDIWALA, J) Sd/- (NISHA M. THAKORE,J) (PER : HONOURABLE MR. JUSTICE J.B. PARDIWALA) 1. My Esteemed Sister, Nisha Thakore, J. has just delivered a very important order as the directions contained therein will go a long way in reducing the hardships and difficulties being caused to the dealers on account of the technical bottlenecks or glitches in the GSTN Portal. 2. India is at the forefront so far as the Information Technology Supremacy is concerned. The GSTN i.e. the Goods and Service Tax Network, is one of the most significant achievements in the history of Indian Indirect Taxation. Since July, ..... X X X X Extracts X X X X X X X X Extracts X X X X
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