TaxTMI 
TaxTMI 
2022 (10) TMI 676
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....ted 21.08.2019 of Superintendent, Berhampur-I Range, Berhampur Division (for short, "Registering Authority"), who, in exercise of power under Section 29(2)(c) of the said Act, has cancelled the registration (Annexure-4). 2. Fact leading the petitioner to approach this Court to beseech invocation of extraordinary jurisdiction under the provisions of Article 226/227 of the Constitution of India, 1950, is that by referring to reply dated 31.08.2019 submitted by the petitioner in pursuance of terms of Show Cause Notice dated 21.08.2019, the Superintendent of Ganjam-I Circle in Berhampur-I Range without assigning any reason proceeded to cancel the registration, GSTIN: 21ALPPP8146E2ZY on 15.10.2019 invoking provisions of Section 29(2)(c) of the CGST Act with effect from 15.10.2019 inasmuch as there was non-filing of returns for consecutive period of six months. 2.1. Instead of seeking revocation of cancellation of registration under Section 30 of the CGST Act before the proper officer, assailing aforementioned order dated 15.10.2019, the petitioner preferred appeal under Section 107 of the CGST Act on 05.08.2021 with a delay of around 660 days which came to be rejected on 07.10.202....
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....rnment keeping in mind on the advent of GST regime with effect from 01.07.2017 adverse situations were faced by suppliers/recipients/taxpayers especially small taxpayers. Due to lack of awareness regarding nuances of "strict compliance" of new taxation policy, they could not file their returns in time. Such difficulties were multiplied by outbreak of Severe Acute Respiratory Syndrome-associated corona virus (SARS-CoV) leading to COVID-19 pandemic. Consequently, such situation was declared force majeure which led to promulgation of Section 168A by way of the CGST (Amendment) Act, 2020 granting power to the Government to extend time limit in special circumstances. 2.6. It is, therefore, argued by the counsel for the petitioner that the Appellate Authority was not powerless to grant opportunity to the petitioner to deposit tax, interest coupled with penalty and late fee and relegate him to approach the Registering Authority under Section 30 of the CGST Act by condoning the delay as has been done by this Court in very many cases, namely in the case of Nirmani Engineers and Constructions Pvt. Ltd. Vrs. The Commissioner of CT&GST, Odisha and Others, W.P.(C) No.15934 of 2021, wherein v....
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.... be directed to make application under Section 30 for revocation of cancellation of registration. 3. It is stated at the Bar that many cases of this nature has been rejected by the Appellate Authority by passing a common order, as a consequence of which taxpayers even though are ready to deposit tax, interest and penalty with late fee and also furnish return(s), they are deprived of availing such advantage as is bestowed in the aforementioned notifications. Since the Bar sought to address the issue, this Court asked Sri Rudra Prasad Kar, Advocate to render assistance in this regard. 3.1. Mr. Rudra Prasad Kar, learned Advocate has placed the following suggestions by way of short note dated 25.08.2022: "GST law being, a New Act, assessees are facing the difficulties in switching to procedural compliance electronically through internet on the GST Web-Portal. Considering the hardship faced by the assessees and more specifically due to COVID-19 pandemic, various amnesty schemes were introduced by the Government of India to ease the technical and procedural complicacies faced by the assessees. The provisions of the GST enactments and the rules made thereunder, read with va....
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.... to assessees/the registered persons, whose registration have been cancelled under clause (b) or clause (c) of subsection (2) of Section 29 of the GST Act to apply for revocation of cancellation of registration from the date of passing of the order. 2. Accordingly, the GST Authorities/Concerned Officers may be directed to consider the application of revocation and allow the assessees to comply with the statutory requirements namely filing of returns, deposit of tax, interest, penalty and late fee within a further period of one month. 3. Authorities to take a pragmatic view and restore the R.Cs. It is submitted that the Government will not be put to any pecuniary loss/revenue loss, rather the above suggestions and directions of this Hon'ble Court will be in the larger interest of trade, commerce and economic growth of the nation." 4. Mr. Rudra Prasad Kar, learned Advocate, brought attention of this Court to the Judgment of Hon'ble Madras High Court rendered in the case of Tvl. Suguna Cutpiece Center Vrs. The Appellate Authority and Another, W.P.(C) No.25048 of 2021, etc. etc., vide Order dated 31.01.2022 reported at 2022 (61) GSTL 515 (Mad) to demonstrate that i....
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....CGST Act and the OGST Act is that certain other statutes including Odisha Value Added Tax Act, 2004 and the Odisha Entry Tax Act, 1999 which were imposing indirect taxes stood repealed and in their place indirect taxes are levied under the CGST Act and the OGST Act. The levy of tax on goods and services is being made by the Central Government under the provisions of the CGST Act, 2017 and concurrent power has been conferred on the State Government to levy goods and services tax under the provisions under the OGST Act. Relevant provisions involved for facilitating adjudication of the issue raised in the present case do require to be mentioned. Section 29 "Cancellation or suspension of registration.- (1) *** (2) The proper officer may cancel the registration of a person from such date, including any retrospective date, as he may deem fit, where,- (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 returns for three consecutive tax periods; or (c) any registered person, other than a person spec....
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....he 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) Where a person who has submitted an application for cancellation of his registration is no longer liable to be registered or his registration is liable to be cancelled, the proper officer shall issue an order in Form GST REG-19, within a period of thirty days from the date of application submitted under Rule 20 or, as the case may be, the date of the reply to the show cause issued under sub-rule (1), cancel the registration, with effect from a date to be determined by him and notify the taxable person, directing him to pay arrears of any tax, interest or penalty including the amount liable 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 subsection (2) of Section 29, furnishes all the pe....
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....orded 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. (4) Upon receipt of the information or clarification in Form GST REG-24, the proper officer shall proceed to dispose of the application in the manner specified in sub-rule (2) within a period of thirty days from the date of the receipt of such information or clarification from the applicant." 7. The Hon'ble Gujarat High Court in the case of Aggarwal Dyeing and Printing Works Vrs. State of Gujarat & 2 Other(s), R/Special Civil Application No. 18860 of 2021, vide Judgment dated 24.02.2022 discussed the provisions enshrined for registration with....
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....ts supply. The Act empowers proper officer and registration granted under GST can be cancelled for specified reasons. The cancellation can either be initiated by the department on their own motion or the registered person can apply for cancellation of his registration. 9.1 From the bare reading of the Rules, 2017 along with statutory provision, the reasons for cancellation can be culled out as under: a) a person registered under any of the existing 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 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 sub-section (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 period....
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....notify the taxable person, directing him to pay arrears of any tax, interest or penalty. vi. The registered person whose registration is cancelled shall pay an amount, by way of debit in the electronic credit ledger or electronic cash ledger, equivalent to the credit of input tax in respect of inputs held in stock and inputs contained in semi-finished or finished goods held in stock or capital goods or plant and machinery on the day immediately 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 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 ....
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....the application as per para (iii) above. In case it is not satisfactory the applicant will be mandatorily given an opportunity of being heard, after which the Proper Officer (Assistant or Deputy Commissioners of Central Tax) after recording the reasons in writing may by an order in Form GST REG-05, reject the application for revocation of cancellation of registration and communicate the same to the applicant. vi. The revocation 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 to. 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 orde....
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....t prescribed under Section 107(1) of CGST Act, 2017. 9. As per the provisions of Section 107(1) of the CGST Act, a person is required to file appeal against an order passed by an adjudicating authority within the time limit of three months from the date on which order is communicated. It is noted that Hon'ble Supreme Court in its order dated 8th March, 2021 has extended the limitation period prescribed under general law of limitation or under any special (both Central and State) due to the onset of Covid-19 virus. Hon'ble Supreme Court in the said order has directed that in computing the period of limitation for any appeal, the period from 15.03.2020 to 14.03.0021 shall stand excluded. Further, it has been held in the said order that in cases where the limitation would have expired during the period between 15.03.2020 till 14.03.2021, notwithstanding the actual balance period of limitation remaining, all persons shall have limitation period of 90 days from 15.3.2021. 10.1 It is also noted that the Hon'ble Supreme Court in its order dated 27.04.2021 has restored its earlier order dated 08.03.20 21 in view of the extraordinary situation caused by the second outburst....
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....ion 128 along with pertinent amendments made thereof subsequently. For better appreciation relevant portions of said notification are extracted herein below to appreciate that the Government extended the benefit to taxpayers to furnish the returns between the period from 1st day of July, 2020 to 30th of September, 2020 who failed to furnish returns for the months of July, 2017 to January, 2020 by the due date: "Government of India Ministry of Finance (Department of Revenue) Central Board of Indirect Taxes and Customs Notification No. 76/2018 - Central Tax New Delhi, the 31st December, 2018 G.S.R.1253(E),- In exercise of the powers conferred by Section 128 of the Central Goods and Services Tax Act, 2017 (12 of 2017) (hereafter in this notification referred to as the said Act), the Central Government, on the recommendations of the Council , and in supersession of the notification of the Government of India in the Ministry of Finance, Department of Revenue No. 28/2017 - Central Tax, dated the 1st September, 2017 published in the Gazette of India, Extraordinary, Part II, Section 3, sub-section (i) vide number G.S.R. 1126 (E), dated ....
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....d Act shall stand waived for the registered person who failed to furnish the return in Form GSTR-3B for the months of July, 2017 to January, 2020, by the due date but furnishes the said return between the period from 1st day of July, 2020 to 30th day of September, 2020.] *** 2[Provided also that for the registered persons who failed to furnish the return in Form GSTR-3B for the months/quarter of July, 2017 to April, 2021, by the due date but furnish the said return between the period from the 1st day of June, 2021 to the 31st day of August, 2021, the total amount of late fee under Section 47 of the said Act, shall stand waived which is in excess of five hundred rupees: Provided also that where the total amount of central tax payable in the said return is nil, the total amount of late fee under Section 47 of the said Act shall stand waived which is in excess of two hundred and fifty rupees for the registered persons who failed to furnish the return in Form GSTR-3B for the months/quarter of July, 2017 to April, 2021, by the due date but furnish the said return between the period from the 1st day of June, 2021 to the 31st day of August, 2021: Provid....
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.... available noticee whose registration is cancelled, is to approach the same authority for revocation of cancellation of the registration in the manner prescribed within 30 days from the date of service of cancellation of registration. 172. When Section 30 was incorporated in the respective GST enactments with effect from 1st July, 2017, there was no proviso to Section 30(1) of the Act. *** 173. Only, a single window of opportunity was given to file application within thirty (30) days for revocation of cancellation order under Section 30(1). However, right from the beginning, GST Council recognised that the GST law was new and assessees encountered the difficulties in switching to procedural compliance electronically through Internet on the GST Web-Portal. 174. Considering the hardship faced by the assessees, the GST Council in its 33rd Meeting held on 24.02.2019 took a decision. Pursuant to aforesaid decision, the Central Government, on recommendations of the GST Council, in exercise of power conferred under Section 172 of the Central Goods and Services Tax Act, 2017, inserted a proviso to Section 30(1) of the respective GST enactments vide Order No.5/201....
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....ckdown was imposed on 24.03.2020 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 Tax (Removal of Difficulties) Order, 2020 vide Order No.01/2020-....
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.... 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. 4643(E).- In exercise of the powers conferred by subsection (2) of Section 1 of the Finance Act, 2020 (12 of 2020) (hereinafter referred to as the said Act), the Central Government hereby appoints the 1st day of January, 2021, as the date on which the provisions of Sections 119, 120, 121, 122, 123, 124, 126, 127 and 131 of the said Act shall come into force. [F.No. CBEC-20/06/04/2020-GST] 193. Parallel amendments were made to Rule 23 of the respective GST Rules and Form GST REG-21 was amended vide Notification No.15/2021- Central Tax, Central Board of Indirect Taxes and Customs, dated 18.05.2021. *** 194. The above amendment however did not address th....
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....2021-GST] 198. The Central Government in the above Notification took a decision to extend the time limit up to 30.09.2021 for the persons like petitioners. However, this was applicable to those registrations 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 up to 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, dated 06.09.2021, while, tracing out the history, in paragraph Nos.3 and 4, it has been clarified as follows: "3. Applications covered under the scope of the said notification 3.1. The said notification specifies that where the due date of filing of application for revocation of cancellation of registration falls between 1st March, 2020 to 31st August, 2021, the time limit for filing of application for revocation of cancellation of registration is extended....
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....ation 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 revocation considering the extended timelines as provided vide the said notification. 4. It may be recalled that, with effect from 01.01.2021, proviso to sub-section (1) of Section 30 of the CGST Act has been inserted which provides for extension of time for filing application for revocation of cancellation of registration by 30 days by Additional/ Joint Commissioner and by another 30 days by the Commissioner. Doubts have been....
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....the Joint/ Additional Commissioner and another 30 days by the Commissioner, on being satisfied, as per proviso to sub-section (1) of Section 30 of the CGST Act." *** 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 taxpayers: These actions would continue to be governed only by the statutory mechanism and time limit provided/ extensions granted under the statute itself. Various orders of the Hon'ble Supreme Court would not apply to the said proceedings/ compliances on part of the tax payers. b) Quasi-Judicial proceedings by tax authorities:- The tax authorities can continue to hear an dispose off proceedings where they are performing the functions as quasi-judicial authority. This may inter alia include disposal of application for refund, application for revocation of cancellation of registration, adjudica....
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.... 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." 8.7. In the case of Aarcity Builders Private Limited Vrs. Union of India and Others, CWP No.19029 of 2021, the Hon'ble Punjab and Haryana High Court at Chandigarh vide Judgment dated 09.12.2021 taking note of Notification No.34/2021- Central Tax, dated 29.08.2021 and the Central Goods and Services Tax (Fifth Removal of Difficulties) Order, 2019 observed as follows: "12. In our considered opinion, the interpretation sought to be placed by learned counsel appearing for respondents is unduly restricted. It cannot be lost site (sight) of that this notification was issued in view of the Covid pandemic, wherein even the Supreme Court had passed a blanket order of extending the period of limitation. Once the petitioners had already been granted benefit of the not....
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.... operation, are that such statutory timelines are of mandatory character with little, or rather no, discretion with the adjudicating authority for enlargement." Notwithstanding such dicta, taking into consideration irregular functioning of the Courts due to the COVID-19 pandemic situation, the Hon'ble Supreme Court in the said reported case [Prakash Corporates, (supra)] observed as follows: "25. It is not a matter of much debate that, starting from or around the month of December 2019, the entire humanity faced a situation which was unprecedentedly unfavourable and unpleasant to almost all the persons and the institutions. It was the outbreak of Covid-19 Pandemic that engulfed practically the entire globe; and the highly contagious virus called SARS-CoV-2 started playing havoc with its rapid transmission from one person to another. Covid-19 carried with it the scary possibilities of irretrievable damage to the respiratory systems, even leading to deaths. In fact, the number of fatalities due to this infection had been beyond imagination with survivors also living under a constant threat. The unprecedented health emergencies due to highly transmissible Covid-19 Virus led....
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....ognizance for Extension of Limitation, In re, (2020) 19 SCC 9 = (2021) 3 SCC (Cri) 799] that the limitation prescribed thereunder shall stand extended w.e.f. 15.03.2020 until further orders. It was a time when the country was under the grip of lockdown, and the Court provided that in case limitation had expired after 15.03.2020, the period between 15.03.2020 and lifting of lockdown in the jurisdictional area would be extended for a period of 15 days after lifting of lockdown. 27.3. Further, on 10.07.2020 [Cognizance for Extension of Limitation, In re, (2020) 9 SCC 468], this Court enlarged the scope of initial order in relation to the timelines fixed in Section 29-A and Section 23(4) of the 1996 Act. Significantly, Section 23(4) of the 1996 Act mandates that the statement of claim and defence shall be completed within a time period of six months. Yet further, it was also provided that the time for completing the process of compulsory pre-litigation mediation under Section 12-A of the Commercial Courts Act, 2015 shall stand extended for 45 days after lifting of lockdown. 27.4. On 08.03.2021 [Cognizance for Extension of Limitation, In re, (2021) 5 SCC 452 = (2021) 3....
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.... order dated 23.03.2020 [Cognizance for Extension of Limitation, In re, (2020) 19 SCC 10 = (2021) 3 SCC (Cri) 801] and it was directed, in continuation of the order dated 08.03.2021 [Cognizance for Extension of Limitation, In re, (2021) 5 SCC 452 = (2021) 3 SCC (Civ) 40 = (2021) 2 SCC (Cri) 615 = (2021) 2 SCC (L&S) 50], that the periods 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. Ultimately, the said MA No. 665 of 2021 was disposed of on 23.09.2021 [Cognizance for Extension of Limitation, In re, (2021) 18 SCC 250 = 2021 SCC OnLine SC 947] with this Court issuing directions similar to those contained in the order dated 08.03.2021 [Cognizance for Extension of Limitation, In re, (2021) 5 SCC 452 = (2021) 3 SCC (Civ) 40 = (2021) 2 SCC (Cri) 615 = (2021) 2 SCC (L&S) 50] but while providing that in computing the period of limitation for any suit, appeal, application or proceeding, the period from 15.03.2020 till 02.10.2021 shall stand excluded. 27.7. We are not elaborating on other directions issued by this Court but, when read as a whole, it is but clear ....
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....provisions like Sections 12 to 15 thereof. When a particular period is to be excluded in relation to any suit or proceeding, essentially the reason is that such a period is accepted by law to be the one not referable to any indolence on the part of the litigant, but being relatable to either the force of circumstances or other requirements of law (like that of mandatory two months' notice for a suit against the Government [Vide Section 15 of the Limitation Act, 1963]). The excluded period, as a necessary consequence, results in enlargement of time, over and above the period prescribed. 28.1. Having regard to the purpose for which this Court had exercised the plenary powers under Article 142 of the Constitution of India and issued necessary orders from time to time in SMWP No. 3 of 2020, we are clearly of the view that the period envisaged finally in the order dated 23-9- 2021 [Cognizance for Extension of Limitation, In re, (2021) 18 SCC 250 = 2021 SCC OnLine SC 947] is required to be excluded in computing the period of limitation even for filing the written statement and even in cases where the delay is otherwise not condonable. It gets perforce reiterated that the orders ....
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.... for filing the written statement expired on 12.08.2020 and the extendable period of 15 days also expired on 27.08.2020. Admittedly, the written statement was filed on 31.08.2020, which was beyond the permissible period of 45 days. The Constitution Bench of this Court has held in New India Assurance Co. Ltd. Vrs. Hilli Multipurpose Cold Storage (P) Ltd., (2020) 5 SCC 757 = (2020) 3 SCC (Civ) 338 that the Consumer Court has no power to extend the time for filing response to the complaint beyond 45 days. After taking note of the applicable provisions of law as also the mandate of the Constitution Bench, this Court referred to the orders until then passed in SMWP No. 3 of 2020 and held that the limitation for filing written statement would be deemed to have been extended. 30. This Court, inter alia, observed and held as follows: [SS Group (P) Ltd. Vrs. Aaditiya J. Garg, (2022) 11 SCC 445 = 2020 SCC OnLine SC 1050], SCC paras 10-11) "10. In the present matter, it is an admitted fact that the period of limitation of 30 days to file the written statement had expired on 12.08.2020 and the extended period of 15 days expired on 27.08.2020. This period expired when the orde....
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....ufa Ahmed Vrs. Upper Assam Plywood Products (P) Ltd., 2019 SCC OnLine NCLT 749] only on 21.11.2019 or 22.11.2019 and received the certified copy of the order through their counsel on 19.12.2019. However, the appellants filed the statutory appeal before the National Company Law Appellate Tribunal only on 20.07.2020 with an application for condonation of delay. The Appellate Tribunal dismissed [Sagufa Ahmed Vrs. Upper Assam Plywood Products (P) Ltd., 2020 SCC OnLine NCLAT 609] the application for condonation of delay on the ground that it had no power to condone the delay beyond a period of 45 days. Consequently, the appeal was also dismissed. In that case, it was indisputable that even while counting from 19.12.2019, the period of 45 days expired on 02.02.2020 and another period of 45 days, for which the Appellate Tribunal could have condoned the delay, also expired on 18.03.2020. To overcome this difficulty, the appellants relied upon the aforesaid order dated 23.03.2020 [Cognizance for Extension of Limitation, In re, (2020) 19 SCC 10 = (2021) 3 SCC (Cri) 801]. 33.1. This Court observed that the appellants were not entitled to take refuge under the above order in SMWP No. ....
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....of the respondent, much emphasis has been laid on the submission that the appellant was regularly appearing in the Court and, therefore, cannot take advantage of the orders passed in SMWP No. 3 of 2020. It is true that the appellant had indeed caused appearance in the Court in response to the summons and sought time for filing its written statement but at the same time, it is also undeniable that at the relevant point of time, the second wave of pandemic was simmering and then, it engulfed the country with rather unexpected intensity and ferocity. Then, on 27.04.2021 [Cognizance for Extension of Limitation, In re, (2021) 17 SCC 231 = 2021 SCC OnLine SC 373], this Court restored the operation of the order dated 23.03.2020 in Cognizance for Extension of Limitation, In re, (2020) 19 SCC 10 = (2021) 3 SCC (Cri) 801. Putting all these factors together, we are unable to accept the submissions made on behalf of the respondent that because of earlier appearance or prayer for adjournment, the appellant-defendant would not be entitled to the relaxation available under the extraordinary orders passed by this Court." 8.9. Noteworthy here to take note of the Order dated 10.01.2022 passed in ....
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....low the present application by restoring the order dated 23.03.2020 passed by this Hon'ble Court in Cognizance for Extension of Limitation, In re, (2020) 19 SCC 10 = (2021) 3 SCC (Cri) 801; and (ii) Allow the present application by restoring the order dated 27.04.2021 passed by this Hon'ble Court in Cognizance for Extension of Limitation, In re, (2021) 17 SCC 231 = 2021 SCC OnLine SC 373; and (iii) Pass such other order or orders as this Hon'ble Court may deem fit and proper. 5. Taking into consideration the arguments advanced by the learned counsel and the impact of the surge of the virus on public health and adversities faced by litigants in the prevailing conditions, we deem it appropriate to dispose of MA No. 21 of 2022 with the following directions: 5.1. The order dated 23.03.2020 [Cognizance for Extension of Limitation, In re, (2020) 19 SCC 10 = (2021) 3 SCC (Cri) 801] is restored and in continuation of the subsequent orders dated 08.03.2021 [Cognizance for Extension of Limitation, In re, (2021) 5 SCC 452 = (2021) 3 SCC (Civ) 40 = (2021) 2 SCC (Cri) 615 = (2021) 2 SCC (L&S) 50], 27.04.2021 [Cognizance for Extension of Limitation, In....
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....sion of Limitation, In re, (2022) 3 SCC 117 = (2022) 1 SCC (Cri) 580 = (2022) 2 SCC (Civ) 46 = (2022) 1 SCC (L&S) 501 = 2022 SCC OnLine SC 27 and Prakash Corporates Vrs. Dee Vee Projects Ltd., (2022) 5 SCC 112 = (2022) 1 SCC (L&S) 771 = 2022 SCC OnLine SC 180. This Court finds that the Appellate Authority has not taken note of relevant notification(s) and amendments carried thereto as discussed in the foregoing paragraphs. 8.11. Close reading of orders passed by the Hon'ble Supreme Court extending period of limitation, the Judgment rendered in the case of Tvl. Suguna Cutpiece Center Vrs. The Appellate Authority and Another, 2022 (61) GSTL 515 (Mad) unflinchingly discussing the purport of amendment(s) to the provisions of the statute, the Judgment dated 09.12.2021 of Punjab & Haryana High Court in the case of Aarcity Builders Private Limited Vrs. Union of India and Others, CWP No.19029 of 2021 and the notifications with the clarifications issued by the Central Government persuades this Court to conclude that there has been pious intention to facilitate the business to be carried out so as to enable smooth payment of taxes and not to debar the taxpayers, but to bring them back to ....
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....ise their jurisdiction consistent with the provisions of the enactment. Even while acting in exercise of the said constitutional power, the High Court cannot ignore the law nor can it override it." 224. Notwithstanding the fact that the petitioners have shown utter disregard to the provisions of the Acts and have failed to take advantage of the amnesty scheme given to revive their registration, this Court is inclined to quash the impugned orders with grant consequential reliefs subject to terms. 225. The provisions of the GST enactments cannot be interpreted so as to deny the right to carry on Trade and Commerce to a citizen and subjects. The constitutional guarantee is unconditional and unequivocal and must be enforced regardless of the defect in the scheme of the GST enactments. The right to carry on trade or professoin also cannot be curtailed. Only reasonable restriction can be imposed. To deny such rights would militate against their rights under Article 14, read with Article 19(1)(g) and Article 21 of the Constitution of India." 8.12. Vide Order dated 17.08.2022 Madras High Court in M. Mallika Mahal Vrs. The Commissioner of Central GST & Central Excise, W....
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.... time limit for filing application for revocation of cancellation of registration and the limitation for all the orders passed on or before 12.06.2020 was to effectively commence from 31.08.2020. As the application filed by the writ applicants for revocation of cancellation of registration was looked into by a quasi-judicial authority, the order of the Supreme Court extending the period of limitation in view of the Covid-19 Pandemic would apply and in such circumstances, the limitation in accordance with the order passed by the Central Board of Indirect Taxes and Customs could be said to have been extended. 10. Indisputably, the application requesting for restoration of registration was filed in July 2021 i.e. during the period when the order of the Supreme Court extending the limitation was in operation. More importantly, the writapplicants have paid the requisite amount towards tax on the basis of self-assessed liability on 06.09.2021. Since the registration of certificate of the writ applicants came to be cancelled solely on the ground of non-filing of the returns, which was on account of non-payment of tax and the writapplicants now having paid such outstanding tax, th....
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.... writ petition or revision application under Article 227 of the Constitution of India. 21. At this stage, the decision of this Court in the case of Virudhunagar Hindu Nadargal Dharma Paribalana Sabai Vrs. Tuticorin Educational Society, (2019) 9 SCC 538, is required to be referred to. In the said decision, it is observed and held by this Court that wherever the proceedings are under the Code of Civil Procedure and the forum is the civil court, the availability of a remedy under CPC, will deter the High Court and therefore, the High Court shall not entertain the revision under Article 227 of the Constitution of India especially in a case where a specific remedy of appeal is provided under the CPC itself. While holding so, it is observed and held in paragraphs 11 to 13 as under:- "11. Secondly, the High Court ought to have seen that when a remedy of appeal under Section 104(1)(i) read with Order 43, Rule 1(r) of the Civil Procedure Code, 1908, was directly available, Respondents 1 and 2 ought to have taken recourse to the same. It is true that the availability of a remedy of appeal may not always be a bar for the exercise of supervisory jurisdiction of the High Court....
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....d decree passed by the learned Trial Court in view of a specific remedy of appeal as provided under the Code of Civil Procedure itself. Therefore, the High Court has committed a grave error in entertaining the revision petition under Article 227 challenging the ex-parte judgment and decree passed by the learned Trial Court and in quashing and setting aside the same in exercise of powers under Article 227 of the Constitution of India." [Emphasis supplied] 9.2. In the case of Vinod Kumar Vrs. Commissioner of Uttarakhand State GST and Others, Special Appeal No. 123 of 2022, vide Judgment dated 20th June, 2022 the set of facts available before the Hon'ble Uttarakhand High Court was that on account of failure to file returns for a continuous period of six months, which was mandatory under the Uttarakhand GST Act, the registration got cancelled on 21.09.2019 and the appeal before the First Appellate Authority was dismissed on the ground of delay; however, the writ petition filed by petitioner/appellant was also dismissed as not maintainable. In the Appeal against Order in Writ Petition passed by the Single Judge of said High Court while holding that writ petition was maintain....
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....by judicial experience and practical wisdom of the judge. 7) It is apparent from the record that a notice was given on the website, which in our considered opinion, is not sufficient, and a personal notice has to be given before cancellation of the registration. Therefore, the Court can invoke its jurisdiction under Article 226 of the Constitution and hold that the orders passed by the learned Commissioner can be interfered in a writ jurisdiction." 9.3. The present writ petition is, therefore, entertained on the peculiar facts of the case and circumstances that prevailed at the relevant period. 9.4. As already stated, since the Appellate Tribunal has not yet been constituted as per Section 109 of the CGST Act, there being no alternative remedy available for the petitioner to question the veracity of the order passed in the first appeal, this Court prefers to exercise its writ jurisdiction to undo prejudice and injustice caused to the petitioner. Thus, this Court is of the considered view that grave injustice would ensue if extraordinary jurisdiction under Article 226 of the Constitution of India is not exercised. In the present case scales of justice weigh in favour ....
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....21: "15.1 The Appellate authority ought to have appreciated that the writ applicants at relevant point of time i.e. in year 2017, applied for registration which request was favourably considered by the authorities under the Act with a specific registration number allotted to the writ applicant. It was a transitional phase, whereby the old CST Act was repealed and the new regime of CGST/ GGST has come into force. With the different forms and procedure envisaged thereunder, any layman is bound to take time to adhered to the norms. The Record reveals that subsequently the writ applicants have claimed to have filed their returns and have even deposited all dues. We further notice that such exercise has been undertaken through the writ applicant's Tax Consultant who were professionally engaged to undertake such task. Unfortunately, information of the returns for certain period not being uploaded, surfaced in the year 2019 and the cause explained suggest that circumstances were beyond the writ applicant's reach. In such peculiar circumstances, it was least expected of the Appellate Authority to condone the delay for filing appeal, more so, with the onset of Pandemic Covid-19, pr....