9911796707
TMI Blog2025 (3) TMI 670X X X X Extracts X X X X X X X X Extracts X X X X ..... gistered in the manner stipulated in Section 25 of the Central Act. It is further seen that if a person is not registered, the Proper Officer can suo moto register him by following the mandate of Rule 16 of the Central Rules. Additionally, Section 122 imposes penalty, if a person fails to obtain registration. From a conjoint reading of Section 29 with Rule 22 and the FORMS GST REG-17, GST REG-18, GST REG-19 and GST REG-20 would show that the Proper Officer can cancel the registration under Sub-Section (2) of Section 29 only on the grounds stipulated in Sub-Clauses (a) to (e) of Section 29(2) and before doing so, an opportunity of hearing has to be given to the person. Sub-Section (3) of Section 29 further stipulates that till the date of cancellation of the registration, the person in whose favour the registration was, has to pay tax and other dues under the Act or to discharge any obligations under the Act or the Rules made thereunder. It would also transpire from a reading of Rule 22 of the Central Rules that not only show cause notice is required to be issued in the format as stipulated in FORM GST REG-17 but also a date of hearing is required to be fixed. Therefore, it would b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ill date - it is the opinion of this Court that in order to balance the equities, it is required that the date of furnishing the annual return be appropriately extended. In that view of the matter, this Court declares that in respect to the Petitioners in the present batch of writ petitions, the period for submission of the annual returns would be the date of the instant judgment except for the period 2024-2025 which would be in terms with Section 44 of the Central Act/State Act.
Conclusion - It is trite that if the said show cause notice is vague, the very initiation of the proceedings on the basis of the said show cause notice would become redundant.The order of cancellation of registration is set aside, subject to fulfilment of conditions imposed.
Petition disposed off. X X X X Extracts X X X X X X X X Extracts X X X X ..... did not submit any reply. 5. Subsequent thereto, on 18.11.2019, the registration of the petitioner was cancelled. The cancellation of the registration has been enclosed as Annexure-3 to the writ petition. It is relevant to take note of that a perusal of the said order for cancellation of registration refers to two contradictory aspects. One, there is a reply submitted by petitioner on 17.11.2019 and the other that there is no reply to the said show cause notice. Apart from that there is no other reason assigned. 6. It is the case of a petitioner that the petitioner came to learn about the suspension and cancellation of its registration in the month of February, 2021 inasmuch as, it is the further case of the petitioner that for the period from November, 2019 on account of financial constraint and also due to the COVID-19 pandemic, he could not coordinate with his tax consultant. Be that as it may, the petitioner could file his return in Form GSTR-1 on 24.03.2021 but the Petitioner was unable to pay the due taxes due to the ongoing financial constraint. The petitioner further states that the petitioner had filed and updated his due return in GSTR-3B on 09.03.2024 for the month of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed the Input Tax Credit which is available and accumulated under the present cancelled registration certificate. WP(C) No. 2695/2024: 9. The petitioner herein is an OPC Company which is duly registered under the State Act and was issued a Registration Certificate bearing Registration No. 18AAGCK0367D1ZP. The said registration was issued on the 26.09.2017. It is the case of the petitioner that the petitioner was regularly filing its returns under the respective provisions of the Central Act and State Act. There was no difficulty in the filing of the returns till the year 2020. However, on account of the COVID-19 pandemic, the parents of the tax consultant of the petitioner namely Shri Dibyajyoti Das had expired. The petitioner though had remitted the amounts to the consultant but the consultant did not take any steps for filing of the returns. In that regard, the petitioner has enclosed the documents evidencing payment of the amounts to the consultant as Annexure-II (series). Be that as it may, as there was no returns filed by the consultant, it was shown in the GSTN portal account of the petitioner that the show cause notice was issued on 29.06.2021. The petitioner could not howe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l. The Appeal which was filed was also delayed by more than two years and such period cannot be condoned in terms with Sub-Section (1) and Sub-Section (4) of Section 107 of the State Act by the Appellate Authority. It was further mentioned that the petitioner therefore should close the earlier registration by filing the return as per the provisions of the State Act by paying all its dues and thereafter obtain a fresh registration and in that process, the provisions of the State Act would not be violated and the Government would get due revenue from the petitioner. 13. No reply was filed to the said affidavit-in-opposition by the petitioner. WP(C) No. 3683/2024: 14. The petitioner No. 1 herein is a partnership firm and the petitioner No. 2 is one of the partners. The petitioner No. 1 is an assessee registered under the State Act bearing Registration No. 18AAEFC7833K3Z3. The said registration was issued on 25.09.2017 in favour of the petitioner No. 1. During the period of COVID-19 pandemic, a show cause notice was issued to the petitioner No. 1 on 11.02.2021 by the Proper Officer. The said show cause notice has been enclosed as Annexure-B to the writ petition. The reason cited in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... .2021. It was mentioned that the petitioners then also did not pay the tax and also did not submitted the reply to the show cause notice and it was under such circumstances, the registration was cancelled on the 23.03.2021. It was further mentioned that though the registration was cancelled on 23.03.2021, the Petitioners continued to do its business without taking any recourse to revive its registration and also not depositing the due tax to the State Exchequer. It was also mentioned that the petitioners have approached this Court in the year 2024 i.e. after three years from the cancellation of the registration and under such circumstances, the petitioners ought to close down its earlier registration by filing final return as per the provisions of the State Act by paying all their dues in the said return and thereafter obtain fresh registration. 18. To the said affidavit-in-opposition, a reply was filed by the petitioners on 26.09.2024 wherein it was mentioned that the petitioners had already complied with all its defaults and have made payment of GST amount by filing GST returns till March, 2021 as allowed by the GST portal and is ready and willing to pay any amount which is lega ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the taxpayer to file application for revocation of cancellation had expired. The petitioner had not filed any Appeal on the ground that as the period for filing of the Appeal and the maximum period that can be condoned had expired in terms with Section 107 of the Central Act, the Appeal, if filed by the Petitioner cannot be taken up on merits. As such, the Petitioner has approached this Court by filing the instant writ petition. 22. It is seen that this Court vide an order dated 06.09.2024 issued notice. The respondents have not filed their affidavit till the time the matter was taken up for hearing. 23. This Court had heard the learned counsels for the petitioners and perused the materials. The submissions so made by the learned counsels are in terms with the pleaded case of both the parties and as such for the sake of brevity, this Court is not repeating the same. ANALYSIS AND DETERMINATION : 24. In the backdrop of the above, the question which arises as to whether this Court should exercise its jurisdiction under Article 226 of the Constitution to interfere with the orders of cancellation of the registration. To decide the said aspect of the matter, it is therefore relevant ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f registration. Sub-Section (1) and Sub-Section (2) of Section 29 of the Central Act stipulates the different conditions when the Proper Officer can exercise its power to cancel a registration. The present case falls within Sub-Section (2) of Section 29. The said Sub-Section (2) of Section 29 of the Central Act is reproduced herein under: "29. (2) The proper officer may cancel the registration of a person from such date, including any retrospective date, as he may deem fit, where - (Refer to Rules 21, 21A & 22) (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 [the return for a financial year beyond three months from the due date of furnishing the said return]; or (c) any registered person, other than a person specified in clause (b), has not furnished returns for [such continuous tax period as may be prescribed]; 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 of fraud, willful ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of Rule 22 further stipulates 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 (c) of Sub-Section (2) of Section 29, furnishes all the pending returns and make full payment of tax dues along with applicable interest and late fee, the Proper Officer shall drop the proceeding and pass an order in FORM GST REG-20. 35. This Court further finds it relevant to take note of Sub-Section (3) of Section 29 which stipulates that the cancellation of the registration under Section 29 shall not affect the liability of the person to pay tax and other dues under the Act or to discharge any obligations under the Act or the Rules made thereunder for any period prior to the date of cancellation, whether or not such tax or other dues are determined before or after the date of cancellation. 36. Therefore, from a conjoint reading of Section 29 with Rule 22 and the FORMS GST REG-17, GST REG-18, GST REG-19 and GST REG-20 would show that the Proper Officer can cancel the registration under Sub-Section (2) of Section 29 only on the grounds stipulated in Sub-Clauses (a) to (e) of Section 29(2) and before doing ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pply to such officer for revocation of the cancellation of registration in such manner, within such time and subject to such conditions and restrictions as may be prescribed. In the instant batch of writ petitions, there was no application filed for revocation in view of the mandate of Rule 23 as it stood post 01.10.2023 whereby it has been mandated that the period within which such an application can be filed cannot be filed beyond 270 days. Under such circumstances, the avenue of revocation of the cancellation of the registration certificate was not available to the petitioners in the batch of writ petitions as no steps were taken within the period of 270 days. 39. Be that as it may, this Court finds it very pertinent to take note of the second and third proviso to Rule 23 (1) of the Central Rules. The said two provisos being relevant are reproduced herein under: "Provided further that no application for revocation shall be filed, if the registration has been cancelled for the failure of the registered person to furnish returns, unless such returns are furnished and any amount due as tax, in terms of such returns, has been paid along with any amount payable towards interest, p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... more. 42. In this context, it is relevant to take note of that in the instant batch of petitions, two of the writ petitioners have preferred appeals and those appeals have been dismissed by the Appellate Authority as the delay in preferring the appeal is more than the period permitted under Section 107 to the Appellate Authority to condone the delay. It is the opinion of this Court that the orders by which the Appellate Authority had rejected the appeals in the case of two petitioners who have preferred the appeals do not call for interference as they had exercised the power in tune with Section 107 of the Central Act. 43. Be that as it may, the question arises in the instant proceedings as to whether the impugned orders of cancellation of the registration were bad in law and violated to the provisions of the Central Act or the State Act or the Rules framed therein under. 44. In the foregoing paragraphs of the instant judgment, this Court has duly taken note of the show cause notices which were issued. The said show cause notices do not specifically state the reasons as to why the Proper Officer was of the opinion that the registration of the petitioner is required to be cancel ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... strations were cancelled in the cases of the petitioners herein sometime in the years 2019 and 2021 and the petitioners have filed their returns for the period prior to cancellation only in the year 2024. There are allegations made by the respondents that the petitioners continued to run their business in the meantime. In addition to that, this Court also takes note of that these writ petitions were filed in the later part of 2024 i.e. after almost three years and in respect to WP(C) No. 2244/2024 after five years. 49. This Court had in the previous segments of the instant judgment referred to the third proviso to Rule 23 (1) of the Central Rules which categorically stipulates that upon revocation of the cancellation of registration, the assessee is required to file his returns within 30 days for the period from the date of cancellation to the date of revocation of the cancellation. In view of this Court opinioning that the orders of cancellation of registration are required to be interfered with, the petitioners herein would now be required to file their annual returns for the various financial years till date. This Court has also taken note of the provisions of Section 73 (10) o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (iii) The order of cancellation of registration dated 23.03.2021 challenged in WP(C) No.3683/2024 is set aside and quashed. The petitioners herein are directed to file the returns for the period from the date of cancellation of the registration i.e. 23.03.2021 till date within 30 days from the date of the instant judgment. The period as stipulated in Section 73 (10) of the Central Act/State Act shall be computed from the date of the instant judgment except for the financial year 2024-25 which shall be as per Section 44 of the Central Act/State Act. The Petitioners herein shall also be liable to make payment of the arrears i.e. tax, penalty, interest and late fees. (iv) The order of cancellation of registration dated 10.02.2021 challenged in WP(C) No. 4500/2024 is set aside and quashed. The petitioner herein is directed to file the returns for the period from the date of cancellation of the registration i.e. 10.02.2021 till date within 30 days from the date of the instant judgment. The period as stipulated in Section 73 (10) of the Central Act/State Act shall be computed from the date of the instant judgment except for the financial year 2024-25 which shall be as per Section 44 o ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
