2023 (2) TMI 321 - HC - GST

GST registration cancellation remanded for fresh hearing due to non-constitution of appellate tribunal, opportunity of hearing mandated

HC held that, in view of the absence of a constituted GST Appellate Tribunal in Telangana and following its earlier precedent, the matter required ... Cancellation of GST registration for non-filing of returns - limitation for filing first appeal under Section 107 of the CGST Act - condonation of delay and extended period for filing appeal - remand for fresh consideration with opportunity of hearing - absence of GST Tribunal under Section 109 leaving the assessee without alternative remedyCancellation of GST registration for non-filing of returns - limitation for filing first appeal under Section 107 of the CGST Act - Validity of the order cancelling the petitioner's GST registration and of the appellate authority's dismissal of the appeal as barred by limitation. - HELD THAT: - The Court followed its earlier decision in M/s. Chenna Krishnama Charyulu Karampudi v. Additional Commissioner (Appeals-1) and subsequent consistent decisions, holding that where registration is suo motu cancelled for non-filing of returns and no Tribunal exists under Section 109, dismissing an appeal on limitation grounds may leave the assessee without an effective remedy. In the circumstances and without expressing any opinion on the merits, the High Court found it appropriate to set aside the cancellation order and the appellate order dismissing the appeal and to remit the matter for fresh consideration by the primary authority so that the petitioner's grievance may be reconsidered after affording an opportunity of hearing. [Paras 6, 7]Order cancelling GST registration and appellate dismissal for limitation set aside; matter remitted for fresh consideration.Remand for fresh consideration with opportunity of hearing - condonation of delay and extended period for filing appeal - Scope and directions of the remand to the primary authority. - HELD THAT: - On remand respondent No.4 (the primary authority) is required to reconsider the petitioner's case and pass a fresh order in accordance with law after affording a reasonable opportunity of hearing. The Court expressly recorded that, in the remand proceedings, the petitioner is entitled to submit all applicable GST returns as per the statute. The direction to remit was given to ensure effective adjudication in the absence of a constituted Tribunal and without adjudicating the merits of the cancellation itself. [Paras 7]Remand directed with instruction that respondent No.4 afford reasonable opportunity of hearing and permit submission of returns; fresh order to be passed in accordance with law.Final Conclusion: The cancellation order dated 10.12.2020 and the appellate order dated 11.01.2023 are set aside; the matter is remitted to the primary authority for fresh consideration after hearing and with liberty to the petitioner to submit returns as per law. Issues:Cancellation of GST registration for non-filing of returns, dismissal of appeal due to limitation, absence of GST Tribunal in Telangana.Analysis:The petitioner, a proprietorship firm dealing with air conditioners, faced cancellation of GST registration by respondent No.4 for not filing returns for six months. Despite the petitioner's response, the registration was canceled on 10.12.2020. An appeal under Section 107 of the Act was made to respondent No.1, but it was dismissed on 11.01.2023 due to being beyond the limitation period. As there is no GST Tribunal in Telangana, a writ petition was filed challenging the cancellation.The issue raised in the petition was previously addressed in a similar case where the Court remanded the matter back to the primary authority for reconsideration and a new order after providing the petitioner with a hearing opportunity. The Court highlighted the provisions of Section 107 of the CGST Act regarding the appeal period and the authority's discretion to extend it by one month for sufficient cause. Emphasizing the importance of providing a remedy to the petitioner, the Court decided to remand the matter to respondent No.2 for a fresh decision considering the petitioner's grievances.In line with the previous decision, the Court set aside the orders of respondent No.4 and respondent No.1, remanding the case to respondent No.4 for a fresh decision following the law. The respondent was directed to grant a fair hearing to the petitioner during the reconsideration process, allowing the submission of GST returns as required by law. The writ petition was disposed of without costs, and any related miscellaneous petitions were closed as a consequence of the judgment.