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2022 (2) TMI 933
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.... For the Petitioner in W.P.Nos.20945, 21237 & 23374 of 2021 : Mr.K.M.Malarmannan For the Petitioner in W.P.No.21315 of 2021 : Mr.S.Patrick For the Petitioner in W.P.No.25118 of 2021 : Mr.M.Elango For the Petitioner in W.P.Nos.25146, 25147 & 25156 of 2021 : Mr.Ashish For the Petitioner in W.P.Nos.25678, 25705, 26187 & 26190 of 2021 and W.P.Nos.126 & 128 of 2022 : Mr.R.Senniappan For the Petitioner in W.P.Nos.12683 & 12685 of 2021 : Mr.P.Rajkumar For the Petitioner in W.P.No.25056 of 2021 : Mr.C.Subramanian For the Petitioner in W.P.No.507 of 2022 : Mr.V.Kumaresan for Mr.K.Murukesan For the Petitioner in W.P.No.14508 of 2021 : Mr.P.V.Sudakar For the Respondents in W.P.Nos.25048, 12738, 17237, 20722, 20945, 21237, 21315, 23374, 24967, 25118, 25146, 25147, 25156, 25678, 12683, 12685, 25026, 26026, 25705, of 2021 and in W.P.No.507 of 2022 : Mr.N.R.R.Arun Natarajan Special Government Pleader For the Respondents in W.P.No.25877 of 2021 : Mr.A.P.Srinivas, Senior Standing Counsel For the respondent in W.P.No.14508 of 2021 : Ms.Amirta Poonkodi Dinakaran Government Advocate For the Respondents in W.P.No.14241 of 2020 and W.P.Nos.26187 & 26190 of 2021 and ....
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....sed by the first respondent in Application Reference Number (ARN): AA331018053413N (Ref. No.ZA331118050192Z) dated 16.11.2018, ii. to quash the same, and iii. to restore the registration of the petitioner in GSTIN/Unique ID:33AAFPE7865CIZY. 6 12683/2021 For issuance of a Writ of Certiorarified Mandamus:- i. to call for the impugned proceedings of the first respondent in Reference No.ZA331119015921T, ii. to quash the impugned order dated 05.11.2019, and iii. to direct the first respondent to restore the GST Registration Certificate of the petitioner in GSTIN/UIN:33AABFL7771Q1ZQ 7 25705/2021 For issuance of a Writ of Certiorari:- i. to call for the records on the files of the respondent in Reference No.ZA331019054883G dated 16.10.2019, and ii. to quash the same. 8 26190/2021 For issuance of Writ of Certiorari:- i. to call for the records on the files of the first respondent in Reference No.ZA331019082695B dated 22.10.2019, and ii. to quash the same as being without jurisdiction and authority of law and contrary to the principles of natural justice. 9 126/2022 For issuance of a Wri....
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....Writ of Certiorarified Mandamus:- i. to call for the impugned proceedings of the second respondent in Appeal No.GST/141/2020, ii. to quash the impugned order dated 23.04.2021, and iii. to direct the first respondent to restore the GST Registration Certificate of the petitioner in GSTIN/UIN:33AABFL7771Q1ZQ. 18 26026/2021 For issuance of a Writ of Certiorari:- i. to call for the records relating to the order of the first respondent Order-In-Appeal No.409/2021 dated 22.09.2021, and ii. to quash the same. 19 507/2022 For issuance of a Writ of Certiorari:- i. to call for the records relating to the impugned order passed by the second respondent in Appeal No.426 of 2021 dated 01.11.2021, and ii. to quash the same. 20 128/2022 For issuance of a Writ of Certiorari:- i. to call for the records on the files of the second respondent in Appeal No.157 of 2021 dated 17.08.2021, and ii. to quash the same as being without jurisdiction and authority of law and contrary to the principles of natural justice. Against the rejection of the application filed for appeal against the order of cance....
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.....08.2019 - 23.09.2021 2 25678/2021 12.12.2018 04.02.2019 - - 3 21315/2021 17.12.2018 01.02.2019 - - 4 12738/2021 10.09.2019 30.09.2019 - - 5 17237/2021 25.09.2019 17.10.2019 - 29.07.2021 6 25877/2021 24.08.2019 05.11.2019 - 27.09.2021 7 25026/2021 01.08.2019 04.10.2019 - - 8 23374/2021 07.01.2019 22.01.2019 16.08.2021 - 9 20945/2021 14.08.2018 29.08.2018 06.09.2021 - 10 20722/2021 26.10.2018 16.11.2018 30.04.2021 - 11 25146/2021 13.05.2019 27.05.2019 27.08.2021 - 12 25147/2021 16.10.2019 30.10.2019 27.08.2021 - 13 25156/2021 16.10.2019 30.10.2019 27.08.2021 - 14 25118/2021 10.10.2019 30.10.2021 - 03.11.2021 15 24967/2021 19.12.2018 07.02.2019 - 02.09.2021 16 21237/2021 19.09.2018 08.10.2018 29.03.2021 - 17 12683/2021 21.10.2019 05.11.2019 - - 18 12685/2021 23.04.2021 19 25705/2021 01.10.2019 16.10.2019 - 20 26190/2021 12.09.2019 22.10.201....
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....filed the returns and paid the tax, the appeal was beyond the limitation. It is submitted that though the petitioner has paid the tax and filed the returns belatedly, nevertheless the petitioner having not opted for filing suitable application for revocation of cancellation of registration, the relief sought for in this Writ Petition cannot be granted. It is further submitted that the order passed by this Court dated 22.09.2021 in W.P.Nos.20083 & 20086 of 2021 will not apply to the facts of the present case. 9. In W.P.No.25877 of 2021, the petitioner has challenged the order dated 27.09.2021 passed by the Appellate Commissioner in Appeal No.143 of 2021 filed by the petitioner against the order dated 27.09.2021 cancelling the CGST registration of the petitioner. 10. Mr.B.Ramesh Kumaar, the learned counsel for the petitioner in W.P.No.25877 of 2021 submits that the petitioner was issued with a Show Cause Notice dated 24.08.2019 under Section 29 of CGST Act, 2017 on the ground that the petitioner has not filed his returns for a continuous period of 6 months and that the petitioner was directed to appear before the second respondent for a personal hearing on 05.09.2019. 11. He....
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....arned Senior Standing Counsel for the respondents would submit that a review petition is also pending before the Hon'ble First Bench against the aforesaid order, nevertheless as the law stands today, as held by the Hon'ble First Bench, the Writ Petition filed by the petitioner has to be dismissed. 19. In W.P.No.12738 of 2021, the petitioner has challenged the impugned order dated 30.09.2019 passed by the respondent revoking the GST registration of the petitioner under Section 29 of the CGST Act, 2017 and TNGST Act, 2017. The impugned order dated 10.09.2019 preceded the Show Cause Notice dated 10.09.2019, to which, the petitioner has also replied on 20.09.2019. 20. It is the specific case of the petitioner in W.P.No.12738 of 2021 that the petitioner was a dealer registered under the provisions of the erstwhile Tamil Nadu Value Added Tax Act,2006 and that the petitioner was liable to pay tax as works contractor. 21. It is the further case of the petitioner that the petitioner's employer had failed to make payment to the petitioner and therefore, during the month of January 2019, the petitioner did not file request returns under the provisions of the TNGST Act and....
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....n'ble Supreme Court vide the said order had clarified as follows: "We also take judicial notice of the fact that the steep rise in COVID-19 Virus cases is not limited to Delhi alone but it has engulfed the entire nation. The extraordinary situation caused by the sudden and second outburst of COVID-19 Virus, thus, requires extraordinary measure to minimize the hardship of litigant-public in all the states. We, therefore, restore the order dated 23rd March, 2020 and in continuation of the order dated 8th March, 2021 direct that the period(s) of limitation, as prescribed 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." 28. Mr.Adithya Reddy, the learned counsel for the petitioner in W.P.No.12738 of 2021 further submits that to give effect to the above decision of the Hon'ble Supreme Court which was again extended vide another order of the Hon'ble Supreme Court on 23.09.2021, the Central Board of Indirect Taxes and Customs has issued Circular No.157/13/2021-GST, the Central Board of Indirect Taxes and Customs, GST Policy Wing, dated 20.07.2021 and in p....
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....itioner and that is also left open to the proper officer to decide in the course of taking a call on the application for revocation when made;" 30. Opposing the prayer in W.P.No.12738 of 2021, Mr.N.R.R.Arun Natarajan, the learned Special Government Pleader appearing on behalf of the respondents submits that the extension which was granted earlier by the Central Board of Indirect Taxes and Customs vide Notification No.1 of 2020, dated 25.06.2020 specifically applied to all those defaulters whose registrations had been revoked upto 12th June 2020 and that the time was granted upto 31st August 2020 for filing appropriate application for revocation of cancellation of registration under Sub-Section (1) of Section 30 of the respective GST Act, 2017. 31. It is further submitted that the petitioner ought to have not only paid the tax on time, but also filed the returns in time to avail the benefit of the Notification No.1 of 2020 - Central Tax, dated 25.06.2020. 32. The learned Special Government Pleader for the respondent further submits that the subsequent extension of time vide Notification No.34 of 2021 - Central Tax, issued by the Department of Revenue, Central Board of Indir....
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....vided vide the said notification." 36. In W.P.No.17237 of 2021, the petitioner has challenged the impugned order dated 29.07.2021 passed by the first respondent viz., Appellate Commissioner made in Appeal No.104 of 2021 under Section 107(1) of the TNGST Act, 2017. 37. It is the specific case of the petitioner in W.P.No.17237 of 2021 that the petitioner's registration was cancelled by the second respondent vide order dated 17.10.2019 pursuant to the issuance of show cause notice dated 25.09.2019. 38. Aggrieved by the aforesaid order, the petitioner filed an appeal before the first respondent/Appellate Commissioner under Section 107 of TNGST Act, 2017 which came to be dismissed vide the impugned order on the ground that the petition has been filed belatedly. 39. Mr.B.RamesshKumaar, the learned counsel for the petitioner in W.P.No.17237 of 2021submits that during the pendency of Appeal before the Appellate Commissioner, several orders came to be passed relaxing the limitation for filing appropriate applications and the benefit of those circulars/orders of the Government should be extended to the petitioner. 40. Opposing the prayer in W.P.No.17237 of 2021, Mr.N.R.R.A....
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....07 of GST Act, appeal has to be filed within the period prescribed from the date of order and if there is sufficient cause for delay in filing of appeal, then additional period of one month may be granted. 47. Dr.A.Thiyagarajan, the Senior Counsel for the petitioner further submits that while filing the appeal, the petitioner was directed to deposit a sum of Rs. 1,40,000/- on 16.04.2021. It is submitted that the petitioner has remitted a sum of Rs. 1,64,484/- as on 16.04.2021. 48. Dr.A.Thiyagarajan, the Senior Counsel also submits that there is a delay in filing of the appeal [Delay of 11 months and. 24 days]. The appellate authority Vide order Rc.No: 440/2021 by a memo dated 30.04.2021 however dismissed the appeal. The reason for dismissal was the appellate authority has no power to condone delay in filing the appeal. The petitioner cannot make an appeal further, as there is no Appellate Tribunal constituted under this act. 49. In W.P.No.20945 of 2021, the petitioner has challenged the impugned order dated 06.09.2021 passed by the first respondent viz., Appellate Commissioner rejecting the appeal preferred by the petitioner against the order passed by the second responden....
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....stration in terms of Section 30(1) of the TNGST Act, 2017. 56. Opposing the prayer in W.P.No.21237 of 2021, Mr.N.R.R.Arun Natarajan, the learned Special Government Pleader appearing on behalf of the respondents would submit that the petitioner has not attempted to file appropriate application by uploading the returns and paying the taxes on time. Therefore, the present Writ Petition is liable to be dismissed. 57. It is also to be noted that the Appellate Commissioner has dismissed the appeal preferred by the petitioner in in W.P.No.21237 of 2021 with the following observations: "(iii). In the appellants case, the order of cancellation of registration has been communicated to the appellants on 08.10.2018 through online. The appellants had time till 07.01.2019 to file appeal against the order of cancellation before this forum. Further If appellant satisfies those conditions in the Section 107(4), further period of one month would also be expired on 07.02.2019. (iv). The appellant has filed the appeal before this forum only on 25.03.2021 by a further delay of 2 Years One Month Nine Days which is beyond the statutory period for filing the appeal." 58. W.P.No.....
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....Section 107 of the TNGST Act, 2017 and therefore, there is no merits in this Writ Petition. 64. It is further submitted that without challenging the order cancelling the registration, it is not open to the petitioner to seek for mandamus and therefore, on this ground also, the Writ Petition is liable to be dismissed. 65. In W.P.No.23374 of 2021, the petitioner has challenged the impugned order passed by the first respondent on 16.08.2021 by rejecting the appeal preferred by the petitioner against the order passed by the second respondent dated 22.01.2019 cancelling the GST registration of the petitioner under Section 29 of TNGST Act, 2017. 66. It is the specific case of the petitioner in W.P.No.23374 of 2021 that the petitioner had replied to the show cause notice dated 07.01.2019, however the second respondent had passed an order on 22.01.2019 cancelling the registration of the petitioner. 67. Mr.K.M.Malarmannan, the learned counsel for the petitioner in W.P.No.23374 of 2021 would submit that the petitioner had preferred an appeal before the Appellate Commissioner, however the Appellate Commissioner has rejected the Appeal on the ground of limitation. 68. Opposing t....
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....e period of limitation for filing the appeal and therefore, the Appellate Commissioner has rightly passed the order and therefore, the Writ Petition is liable to be dismissed. It is further submitted that the petitioner has also not filed an application for Revocation of the cancellation of license under Section 30(1) of the TNGST Act and therefore, the petitioner is not entitled for any relief. 75. It is also further submitted that the petitioner is also not entitled to any of the relaxations given by the Central Board of Indirect Taxes and Customs vide Notification No.1 of 2020, dated 25.06.2020 and Notification No.34 of 2021 - Central Tax, issued by the Department of Revenue, Central Board of Indirect Taxes and Customs, dated 29.08.2021. 76. The learned Special Government Pleader further submits that there is no clarity as to whether the petitioner has filed the returns while filing an appeal before the Appellate Commissioner and therefore, for the reasons stated above, the Writ Petition is liable to be dismissed. 77. In W.P.No.25118 of 2021, the petitioner has challenged the impugned order passed by the first respondent dated 03.11.2021 rejecting the appeal preferred b....
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....ng appeal (appeal was filed by delay of two years and three months). The maximum limitation period is 3 Months and (additional 1 Month may be granted ) as per Section 107 of GST Act, 2017. 83. In W.P.No.25147 of 2021, the petitioner has challenged the impugned order dated 27.08.2021 passed by the Respondent for Revocation of cancellation of GST Registration in respect of Show Cause Notice dated 16.10.2019. The Respondent issued a notice dated 16.10.2019 to the petitioner u/s 29(2)(c) of TNGST Act , i.e. for non-filing of return for a period of Six months. The petitioner filed a reply to the Show Cause Notice vide letter dated 26.10.2019. Thereafter, the respondent had passed an order for cancellation of GST registration dated 27.05.2019. 84. Mr.Ashish, the learned counsel for the petitioner in W.P.No.25147 of 2021 submits that the petitioner, aggrieved by the order of the respondent, filed an application, against cancellation of the registration praying for Revocation of cancellation of registration which was numbered as Rc.No.1289/2021/A1. Though all tax returns and dues had been filed the said appeal was dismissed by the respondent on the ground that there was delay in fili....
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....d vide the decision of the Hon'ble Supreme Court dated 08.03.2021 passed in the wake of outbreak of Covid- 19 Pandemic and submits that the Hon'ble Supreme Court vide the said order had clarified as follows: "We also take judicial notice of the fact that the steep rise in COVID-19 Virus cases is not limited to Delhi alone but it has engulfed the entire nation. The extraordinary situation caused by the sudden and second outburst of COVID-19 Virus, thus, requires extraordinary measure to minimize the hardship of litigant-public in all the states. We, therefore, restore the order dated 23rd March, 2020 and in continuation of the order dated 8th March, 2021 direct that the period(s) of limitation, as prescribed 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." 91. Thus, the learned counsel for the petitioner in W.P.No.25678 of 2021submits that the appeal ought to have been taken up and disposed on merits. 92. Opposing the prayer in W.P.No.25678 of 2021, the learned Special Government Pleader appearing on behalf of the respondent would submit that the ap....
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....d respondent. The time to statutory appeal expired on 04.03.2021, and so the order dated 08.03.2020 passed by the Hon'ble Supreme Court in Suo-moto Writ Petition (civil) No.3 of 2020 does not apply to petitioner's case. 99. In W.P.No.25026 of 2021, the petitioner has challenged the impugned order dated 04.10.2019 cancelling the registration of the petitioner on account of the petitioner's failure to file returns for a continuous period of six months. The impugned order of the respondent is challenged primarily on the ground that the show cause notice was issued on 01.08.2019 fixing the hearing on 02.08.2019, contrary to the provisions of the applicable GST Rules and Section 29 of the TNGST Act, 2017. 100. It is submitted that the petitioner in W.P.No.25026 of 2021also appeared for personal hearing and filed his reply on 11.08.2019 and requested for time. However, without awaiting reply, the respondent proceeded to pass orders on 04.10.2019 and therefore, the petitioner is aggrieved by the aforesaid order. 101. Mr.C.Subramanian, the learned counsel for the petitioner in W.P.No.25026 of 2021 further submits that the petitioner is engaged in renting out immovable ....
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.... Mr.P.V.Sudakar, the learned counsel for the petitioner in W.P.No.14508 of 2021 submits that the petitioner was entitled to avail the benefit of Order No.01/2020-Central Tax dated 25.06.2020 as per which the time stood extended or computing the limitation. In this case, the limitation would have expired on the 30th day from 31.08.2020. It is further submitted that the Hon'ble Supreme Court has suo motu suspended the limitation by its order dated 08.03.2021 and previous order dated 23.03.2020. 107. Mr.P.V.Sudakar, the learned counsel for the petitioner in W.P.No.14508 of 2021 further submits that the grounds stated in the show cause notice dated 21.10.2019 is not filed under Section 29 of the respective GST Act. 108. Opposing the prayer in W.P.No.14508 of 2021, Ms.Amirta Poonkodi Dinakaran, the learned Government Advocate for the respondent submits that the petitioner is not entitled to challenge the impugned order. The petitioner was also filed an Appeal before the Appellate Commissioner which has been rejected. 109. In W.P.No.126 of 2022, the petitioner has challenged the impugned order dated 07.06.2019 passed by the first respondent Assistant Commissioner(ST) cancell....
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.... of the petitioner should not be cancelled for not having filed the returns for a continuous period of six months. The petitioner appears to have replied to the same which culminated in an order dated 22.10.2019 of the first respondent herein. 116. The petitioner in W.P.Nos.26187 & 26190 of 2021 has an alternate remedy under Section 30 of the TNGST Act, 2017 for revocation of the suspension order within the time stipulated under Section 30 of the TNGST Act, 2017 or in the alternative file an appeal within a period of thirty days under Section 117 of the TNGST Act, 2017. 117. Mr.P.Rajkumar, the learned counsel for the petitioner in W.P.Nos.26187 & 26190 of 2021 submits that the petitioner opted to file an appeal before the Appellate Commissioner on 20.07.2021 which has culminated in the impugned order of the second respondent Appellate Deputy Commissioner. The operative portion of the impugned order reads as under:- "Tvl.Aurum Creamy Zone having office at 1335, Avinashi Road, Peelamedy, Coimbatore-04 is a registered dealer in the books of the Assistant Commissioner (ST) Peelamedy North Circle. The appellant Registration Certificate was cancelled on 22.10.2019 for non ....
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.... 09.01.2019 vide order dated 09.01.2019 by the first respondent. 123. The petitioner in W.P.No.507 of 2022 appears to have filed a Writ Petition in W.P. (MD)Nos.6245, 6247 and 6249 of 2021 which was disposed by an order dated 19.07.2021. Thereafter, the petitioner in W.P.No.507 of 2022preferred an appeal before the Appellate Authority on 31.07.2021 against order dated 11.12.2018 of the first respondent. 124. The second respondent had now passed the impugned order rejecting the appeal filed by the petitioner and therefore the option for revising the impugned order is struck down vide order dated 11.12.2018. 125. Opposing the prayer in W.P.No.507 of 2022, the learned Special Government Pleader for the respondents Mr.N.R.R.Arun Natarajan submits that the orders have cited by the learned counsel for the petitioner in this writ petition, which were passed by the respondents due to outbreak of Covid-19 Pandemic. It is submitted that the order of cancellation dated 09.01.2019 is long before the outbreak of Covid-19 Pandemic during March 2020. Therefore, there is no merit in W.P.No.507 of 2022 126. In W.P.No.25705 of 2021, the petitioner has challenged the impugned order dated 16.....
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.... failed to opt. The petitioner has also not opted to file an application for revocation of cancellation of registration under sub-section (1) of Section 30 of the Act and therefore, submits that the Writ Petition is devoid of merits. 132. By way of rejoinder, the learned counsel for the petitioner in W.P.No.25705 of 2021 submits that the petitioner has filed an appeal on 26.10.2021 and therefore, the submission made by the learned Special Government Pleader that the petitioner has not opt for filing an appeal cannot be countenanced. Further, the learned counsel would submit that the petitioner is entitled for protection in terms of the decision of the Hon'ble Supreme Court dated 08.03.2021 and 23.09.2021. 133. The learned counsel for the petitioner in W.P.Nos.12683 & 12685 of 2021 submits that in the present case, the petitioner was issued with a Show Cause Notice, to which, the petitioner has filed reply. He further submits that the petitioner had also filed an appeal which had been rejected for the reason that the appeal was filed beyond the period of limitation under Section 107 of the TNGST Act, 2017. 134. He further submits that the Government has extended the tim....
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....ard of Indirect Taxes and Customs, dated 06.09.2021. The operative portion has already been extracted above. 138. Dealing with the situation where an assessee had filed an appeal before the Appellate Commissioner and had suffered an order of the Appellate Commissioner, a request was made in W.P.Nos.20083 & 20086 of 2021, content of which has been extracted above, to direct the respondents to consider and pass appropriate orders in the light of the concession given by Notification No.34/2021, dated 29.08.2021 of Central Board of Indirect Taxes and Customs. 139. Since the petitioner has approached the Authority concerned before the deadline prescribed as 30.09.2021, these Writ Petitions deserve to be allowed. 140. In W.P.No.14241 of 2020, the petitioner has challenged the impugned order dated 11.11.2019 passed by the respondent for revocation of cancellation of GST Registration in respect to the Show Cause Notice dated 18.10.2019, and also questioning the jurisdiction of the respondent with matters relating to examining petitioner's ITC(Input Tax Credit). 141. Mr.Adithya Reddy, the learned counsel for the petitioner submits that the respondent issued a Show Cause Noti....
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....opportunity of being heard. The petitioner filed an application for revocation of cancellation of registration in terms of the Notification No.34/2021- Central Tax, dated 29.08.2021. The System rejected the application as the application for revocation cannot be filed beyound 579 days from the date of cancellation. 149. He further submits that aggrieved by the order, the petitioner filed an appeal vide Appeal No.409 of 2021. But, the first respondent dismissed the appeal on the ground that there was a delay in filing. 150. I have heard the learned Senior Counsel and respective counsel for the petitioners in the respective Writ Petitions and the learned Special Government Pleader, learned Senior Standing Counsel for the respective respondents. 151. There are broadly four categories of cases. Some of the petitioners have directly challenged the order of cancellation of GST registration passed under Section 29 of the respective GST Acts. All these petitioners had a remedy to file an application under Section 30 of the respective GST Acts for revocation of cancellation of the registration in time subject to the conditions prescribed therein or to file an appeal before the Appe....
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....are bound to Act in accordance of the provisions of the Act. At the same time, I find there are overwhelming reasons for granting reliefs to these petitioners to restore their registration. 158. Before proceeding to deal further with the issue, it will be useful to refer the legal changes brought to the tax regime with the enactments of respective Goods and Services Tax Act. When GST came into force with effect from 01.07.2017, it was found that there was overlapping of the jurisdiction by the officers functioning under the Central Goods and Services Tax Act, 2017 and respective State/Union Goods and Services Tax Act, 2017. This was reconciled by the Central Government by issuing Circular No.1/2017, dated 20.09.2017. Relevant portion of Circular No.1/2017, dated 20.09.2017 is reproduced below:- Based on the decisions taken in the 9th Meeting of the GST Council held on 16 January, 2017 and 21st Meeting of the GST Council held on 9 September, 2017, the following criteria should be followed for the division of taxpayer base between the Centre and the States to ensure single interface: i. Of the total number of taxpayers below Rs. 1.5 crore turnover, all administra....
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....ssioners/Commissioners are already in place for effective coordination between the Centre and the States. The said Committees may now take necessary steps for division of taxpayers in each State keeping in view the principles stated above. Supplementary decisions, if any, may be taken by the said Committees to implement the decision of the GST Council, keeping in view the broad principles stated hereinabove. 159. Though the enactment of the respective Goods and Service Tax Act, 2017 was made without a detailed discussion in the respective houses of the Parliaments and the Legislative Assemblies of the State and Union Territories, nevertheless these enactments are comprehensive and detailed with few design faults which have procedural ramification. 160. As per section 39 of the respective GST enactments, every registered person, other than an Input Service Distributor of a non-resident taxable person or a person paying tax under the provisions of Sections 10 or 51 or 52 shall, for every calendar month or part thereof, furnish, a return, electronically, of inward and outward supplies of goods or services on both, input tax credit availed, tax payable, tax paid and such other pa....
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....n order of a High Court, Tribunal or otherwise, the transferee shall be liable to be registered, with effect from the date on which the Registrar of Companies issues a certificate of incorporation giving effect to such order of the High Court or Tribunal. Explanation.--For the purposes of this section,-- (i) the expression "aggregate turnover" shall include all supplies made by the taxable person, whether on his own account or made on behalf of all his principals; (ii) the supply of goods, after completion of job work, by a registered job worker shall be treated as the supply of goods by the principal referred to in section 143, and the value of such goods shall not be included in the aggregate turnover of the registered job worker; (iii) the expression "special category States" shall mean the States as specified in sub-clause (g) of clause (4) of article 279A of the Constitution. 164. As per Section 22(2) of the Central Goods and Services Tax Act, 2017, every person who, on the day immediately preceding the appointed day, was registered or held a license under an existing law, shall be liable to be registered under the Act with effect from th....
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....to be eligible for grant of registration. (7) Notwithstanding anything contained in sub-section (6), a non-resident taxable person may be granted registration under sub-section (1) on the basis of such other documents as may be prescribed. (8) Where a person who is liable to be registered under this Act fails to obtain registration, the proper officer may, without prejudice to any action which may be taken under this Act or under any other law for the time being in force, proceed to register such person in such manner as may be prescribed. (9) Notwithstanding anything contained in sub-section (1),-- (a) any specialised agency of the United Nations Organisation or any Multilateral Financial Institution and Organisation notified under the United Nations (Privileges and Immunities) Act, 1947, Consulate or Embassy of foreign countries; and (b) any other person or class of persons, as may be notified by the Commissioner, shall be granted a Unique Identity Number in such manner and for such purposes, including refund of taxes on the notified supplies of goods or services or both received by them, as may be prescribed. (10) The registr....
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....e proper officer may cancel the registration of a person from such date, including any retrospective date, as he may deem fit, where,- a registered person has contravened such provisions of the Act or the rules made thereunder as may be prescribed; or a person paying tax under section 10 has not furnished returns for three consecutive tax periods; or any registered person, other than a person specified in clause (b), has not furnished returns for a continuous period of six months; or any person who has taken voluntary registration under subsection (3) of section 25 has not commenced business within six months from the date of registration; or registration has been obtained by means of fraud, wilful misstatement or suppression of facts: Provided that the proper officer shall not cancel the registration without giving the person an opportunity of being heard. (2) The reply to the show cause notice issued under sub-rule (1) shall be furnished in FORM REG- 18 within the period specified in the said sub-rule. (3) The cancellation of registration under this section shall not affect the liability of the person to pay tax and other dues un....
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....hinery, 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 (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 (6) The amount payable under subsection (5) shall be calculated in such manner as may be prescribed. 168 . Sub Section (2) to Section 29 deals with a situation where, a proper officer may cancel the registration of a person from such date, including a retroprospective date, as he may deem such. 169. All the cases under consideration fall under situation under Sub Clause (2)(c) i.e "where a registered person other than the person specified in Clause (b) has failed to furnish returns for a continuous period of 6 months". 170. All these petitioners were issued with a proper notice as is contemplated under the aforesaid provision. The orders were also passed after giving petitioners sufficient opportunity of being heard. Majority of the petitioners failed to respond notices issued by the respondent State Tax....
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....d 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 statute. The above amendment was a stop gap arrangement. As per the aforesaid proviso which was inserted to Section 30(1) of the Act, wherever cancellation orders had been passed upto 31.03.2019 and application for revocation was not filed within thirty (30) days under Sub-Section 1 to Section 30, an option was given to file an applicatio....
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....iable 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 sub-section (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] 17 (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. 177. An alternate remedy is also available in the order of cancellation by way of appeal under Section 107 of the respective GST enactments which option has been exercised by some of the writ petitioners but beyond the period of limitation. 178. A reading of Section 29 of the Act respective GST enactments also makes it clear that cancellation of registration under ....
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.... proviso also failed to avail the above opportunity. 184. Nationwide, lockdown was imposed on 24.08.2020 due to the outbreak of SARS Covid-19 Pandemic. Under these circumstances, Government, rose to the occasion based on the recommendation of the GST Council and gave a fresh opportunity to those persons whose right to file an application under Section 30(1) of the Act and the remedy under proviso to the Section 30(1) of the Act had expired between 20.03.2020 to 29.06.2020 by extending the period upto 30.06.2020 vide Notification No.35/2020 - Central Tax, Central Board of Indirect Taxes and Customs, dated 03.04.2020. 185. This Notification was issued in the exercise of power conferred under Section 168A of the Central Goods and Services Tax Act, 2017 read with Section 20 of the Integrated Goods and Services Tax Act, 2017 and Section 21 of the Union Territory Goods and Services Tax Act, 2017. This did not address the case of the above petitioners. 186. However, on 25.06.2020, the Central Government on 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 ....
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.... the Finance Act, 2020 which came into force from 01.01.2021 which reads as under:- "Provided that such period may, on sufficient cause being shown, and for reasons to be recorded in writing, be extended,- (a) by the Additional Commissioner or the Joint Commissioner, as the case may be, for a period not exceeding thirty days; (b) by the Commissioner, for a further period not exceeding thirty days, beyond the period specified in clause (a).". 192. By Notification No.92/2020-Central Tax, dated 22.12.2020, the Central Government appointed the 1st day of January, 2021 as the date on which the provisions of Section 119, 120, 121, 122, 123, 124, 126, 127 and 131 of the Act shall come into force. Thus, Section 30 of the GST Acts, came into force with effect from 1st day of January, 2021. The said Notification reads as under:- Government of India Ministry of Finance (Department of Revenue) Central Board of Indirect Taxes and Customs Notification No 92/2020-Central Tax New Delhi, the 22nd December, 2020 S.O. ...... (E).- In exercise of the powers conferred by sub-section (2) of section 1 of the Finance Act, 2020 (12 of 2020) (hereinaf....
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.... 2) (a) Where the proper officer is satisfied, for reasons to be recorded in writing, that there are sufficient grounds for revocation of cancellation of registration, he shall revoke the cancellation of registration by an order in FORM GST REG-22 within a period of thirty days from the date of the receipt of the application and communicate the same to the applicant. (b) The proper officer may, for reasons to be recorded in writing, under circumstances other than those specified in clause (a), by an order in FORM GST REG-05, reject the application for revocation of cancellation of registration and communicate the same to the applicant. 3) The proper officer shall, before passing the order referred to in clause (b) of sub-rule (2), issue a notice in FORM GST REG-23 requiring the applicant to show cause as to why the application submitted for revocation under sub-rule (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. Upon receipt of the information or clarification in FORM GST REG-24, the proper officer shall proceed to dispose of the ....
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....ncil, hereby notifies that where a registration has been cancelled under clause (b) or (c) of subsection (2) of section 29 of the said Act and the time limit for making an application of revocation of cancellation of registration under sub-section (1) of section 30 of the said Act falls during the period from the 1 st day of March, 2020 to 31st day of August, 2021, the time limit for making such application shall be extended upto the 30th day of September, 2021. [F. No. CBIC-20006/24/2021-GST] 198. The Central Government in the above Notification took a decision to extend the time limit upto 30.09.2021 for the persons like petitioners. However, this was applicable to those registration which had been cancelled and time limit for filing application for revocation of cancellation of registration had expired during the period commencing from the 1st day of March, 2020 to 31st day of August, 2021. Thus, the time limit for making such application stood extended upto the 30th day of September, 2021. 199. In the light of the above Notification, the Principal Commissioner has also issued clarification vide Circular No.158/14/2021-GST, Central Board of Indirect Taxes and Customs, d....
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....ses, the officer shall process the application for revocation considering the extended timelines as provided vide the said notification. iii. application for revocation of cancellation of registration was filed, but was rejected by the proper officer and taxpayer has not filed any appeal against the rejection - In such cases, taxpayer may file a fresh application for revocation and the officer shall process the application for revocation considering the extended timelines as provided vide the said notification. iv. application for revocation of cancellation of registration was filed, the proper officer rejected the application and appeal against the rejection order is pending before appellate authority- In such cases, appellate authorities shall take the cognizance of the said notification for extension of timelines while deciding the appeal. v. application for revocation of cancellation of registration was filed, the proper officer rejected the application and the appeal has been decided against the taxpayer- In such cases, taxpayer may file a fresh application for revocation and the officer shall process the application for re....
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....ner, on being satisfied, as per proviso to subsection (1) of section 30 of the CGST Act (c) Where the time period of 30 days (and not 60 days or 90 days) since cancellation of registration has elapsed by 31.08.2021, the time limit to apply for revocation of cancellation of registration stands extended upto 30th September 2021, with the extension of timelines by another 30 days beyond 30.09.2021 by the Joint/ Additional Commissioner and another 30 days by the Commissioner, on being satisfied, as per proviso to subsection (1) of section 30 of the CGST Act. 200. None of the petitioners took advantage of the extension of time granted in the above Notification for revocation of cancellation of registration. Instead, some of them have filed appeals before the Appellate authority. 201. By Circular No.157/13/2021-GST, the Central Board of Indirect Taxes and Customs, GST Policy Wing, dated 20.07.2021, it was classified as follows:- 4. On the basis of the legal opinion, it is hereby clarified that various actions/compliances under GST can be broadly categorised as follows:- a) Proceedings that need to be initiated or compliances that need to be done by the ta....
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.... have a limitation period of 90 days from 03.10.2021. In the event the actual balance period of limitation remaining, with effect from 03.10.2021, is greater than 90 days, that longer period shall apply. III. The period from 15.03.2020 till 02.10.2021 shall also stand excluded in computing the periods prescribed under Sections 23(4) and 29A of the Arbitration and Conciliation Act, 1996, Section 12A 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. IV. The Government of India shall amend the guidelines for containment zones, to state. "Regulated movement will be allowed for medical emergencies, provision of essential goods and services, and other necessary functions, such as, time bound applications, including for legal purposes, and educational and job-related requirements." 204. This Court, by its order dated 22.09.2021 in Tvl.Sunpenta Mining Service Private Limited Vs. The Assistant Commissioner (ST),....
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.... the Rules made there under read with various clarifications issued by the Central Government pursuant to the decision of the GST Council and the Notification issued thereunder the respective enactments also make it clear, intention is to only facilitate and not to debar and de-recognised assesses from coming back into the GST fold. 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. 212. May be, organised ....
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....etitioners deserve a right to come back into the GST fold and carry on their trade and business in a legitimate manner. 220. The provisions of the GST Enactments and the Rules made there under read with various clarifications issued by the Central Government pursuant to the decision of the GST Council and the Notification issued thereunder the respective enactments also make it clear, intention is to only facilitate and not to debar and de-recognised assesses from coming back into the GST fold. 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 of India is being exercised cautiously in favour of the petitioners as this power is conceived to serve the ends of law and not to transgress them. 223. In Mafatlal Industries Ltd. Vs. Union of India, (1997) 5 SCC 536, in Paragraph No.77, the Hon'ble Supreme Court observed that "So far as the jurisdiction of the High Court under Article....
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....s deserve a chance and therefore should be allowed to revive their registration so that they can proceed to regularize the defaults. The authorities acting under the Act may impose penalty with the gravity of lapses committed by these petitioners by issuing notice. If required, the Central Government and the State Government may also suitably amend the Rules to levy penalty so that it acts as a deterrent on others from adopting casual approach. 229. In the light of the above discussion, these Writ Petitions are allowed subject to the following conditions:- i. The petitioners are directed to file their returns for the period prior to the cancellation of registration, if such returns have not been already filed, together with tax defaulted which has not been paid prior to cancellation along with interest for such belated payment of tax and fine and fee fixed for belated filing of returns for the defaulted period under the provisions of the Act, within a period of forty five (45) days from the date of receipt of a copy of this order, if it has not been already paid. ii. It is made clear that such payment of Tax, Interest, fine / fee and etc. shall not be allowed t....