TaxTMI 
TaxTMI 
2022 (12) TMI 1028
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....anian, Mr.Ramanathan For Mr.R.Senniappan, Mr.A.Ganapatheeswaran, Mr.S.Ramanan, Mr.N.Murali, Mr.Adithiya Reddy, Mr.P.Muthamizh And Others For the Respondents : Mr.Pramod Kumar Chopda, Senior Standing Counsel, Mr.Mohanamurali, Senior Panel Counsel, Mrs.Hema Muralikrishnan, Senior Standing Counsel, Mr.T.Ramesh Kutty, Senior Standing Counsel, Mr.Sai Srujan Tayi, Senior Panel Counsel, Mr.Pramod Kumar Chopda, Senior Standing Counsel And Others COMMON ORDER This order, passed in a batch of 44 writ petitions is a sequel to several earlier orders passed in other batches of writ petitions wherein the cause of action is similar/identical to that in the present writ petitions. All petitioners challenge either orders passed by the Central/State Commercial Tax Authorities under the provisions of the Central Goods and Services Tax Act, 2017 or Tamil Nadu Goods and Services Tax Act, 2017 (CGST/TNGST) or orders of the appellate authorities rejecting appeals filed by them challenging orders cancelling registration on the ground that appeals have been filed belatedly. 2. Benches of this Court have earlier taken a view that, as a matter of leniency, similarly, though not equally placed petitioners....
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....et out for the delay are well founded, discretion may well be exercised in favour of the assessee concerned, and the delay condoned. 7. This position has been reiterated by the Hon'ble Supreme Court in the case of Assistant Commissioner (CT) Vs. Glaxo Smith Kline Consumer Health Care Limited, [C.A.No.2413 of 2020 dated 06.05.2020]. I have, in Keshav Ply N Laminates Vs. The Assistant Commissioner (ST),W.P.Nos.15679 of 2020 dated 03.03.2021, where assessments under the commercial tax statues were assailed, had occasion to consider and decide the same issue and have stated thus: 10. Courts have, pan India, been taking differing stands with regard to the legal proposition as to whether Writ Petitions challenging orders of assessment where the concerned Statute provides for the remedy of appeal and sets out fixed time frames for filing of appeal and condonation of delay if any, in filing of the same, may be entertained. 11. One school of thought is that no Writ Petition may be entertained in the above circumstances, as the period of limitation fixed by Statute is sans any flexibility and rigid, constituting an absolute bar. 12. Yet another school of thought is that the power ....
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....wari v. Antarim Zila Parishad now Zila Parishad (AIR 1969 SC 556); Oil and Natural Gas Corporation Limited v. Gujarat Energy Transmission Corporation Limited ((2017) 5 SCC 42); Titaghur Paper Mills Co. Ltd. v. State of Orissa ((1983) 2 SCC 433. Chhattisgarh State Electricity Board v. Central Electricity Regulatory Commission ((2010) 5 SCC 23); ITC Ltd. v. Union of India (1998 (101) E.L.T. 9 (S.C.)); Nivedita Sharma v. Cellular Operators Association of India ((2011) 14 SCC 337); Raja Mechanical Co. (P) Ltd. v. Commissioner (2013 (29) S.T.R. 81 (S.C.)) = (2012 (279) E.L.T. 481 (S.C.)); Singh Enterprises v. Commissioner (2008 (221) E.L.T. 163 (S.C.)); State v. Mushtaq Ahmad ((2016) 1 SCC 315); Suryachakra Power Corporation Limited v. Electricity Department ((2016) 16 SCC 152); Commissioner v. Hongo India (P) Ltd. (2009 (236) E.L.T. 417 (S.C.)); Electronics Corporation of India Limited v. Union of India (2018 (361) E.L.T. 22 (A.P.)); Panoli Intermediate (India) Pvt. Ltd. v. Union of India (2015 (326) E.L.T. 9 532 (Guj.)); Phoenix Plasts Company v. Commissioner (2013 (298) E.L.T. 481 (Kar.)). 16. At para 12 the Bench states that indubitably, the powers of the High Court under Article ....
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...., is the basis upon which I propose to dispose this batch of Writ Petitions. I have considered the circumstances leading to the delayed challenge to the impugned orders of assessment in each case, individually. In doing so, I envisage two road blocks that the petitioners would have to cross. The first one relates to the delay occasioned in approaching this Court beyond the period of statutory limitation and explanation thereto. In my view, the explanation offered at this stage, would have to comprise of purely personal/human/medical reasons. Failure to convince the court at this stage would result in the writ petition being dismissed in limine. 22. If the petitioner crosses the first barrier, the Writ Petition should be established to be maintainable applying settled parameters, notwithstanding the availability of an alternate remedy. If the petitioner is successful, the Court might be persuaded to consider the challenge, permitting it to either file a belated appeal without reference to limitation or, depending on the merits of the matter, consider interference under Article 226 in the order itself 8. The discussion as above is reiterated in the present matter as well. The only....
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.... and in accordance with law. 13.This Writ Petition is dismissed, though with liberty as above. No costs. Connected Miscellaneous Petitions are closed. W.P.No.26653 of 2022: 14. The appeal has been filed before the first appellate authority as against the cancellation of registration, which is dated 25.01.2021, with a delay of 87 days. The justification set out for the delay of 87 days in filing of appeal is that the business of the petitioner was paralysed. 15. In light of the judgment of the Hon'ble Supreme Court in the case of Glaxo Smith Kline Consumer Health Care Limited (supra) and order of this Court in M/S.Kesaav Ply N Laminates (supra), the explanation set forth, does not, in the considered view of the Court, merit acceptance. 16.This Writ Petition is dismissed. No costs. W.P.No.27033 of 2022: 17.The petitioner is called absent. In any event, the appeal has been filed before the first appellate authority with a delay of 38 days and there is no reason set out in the affidavit filed in support of the Writ Petition justifying the said delay. 18. In light of the judgment of the Hon'ble Supreme Court in the case of Glaxo Smith Kline Consumer Health Care Limited (supra) a....
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....ated 15.11.2022 to the effect that the petitioner has filed GSTR 3B returns upto November, 2019 along with late fee. 28.That apart, the petitioner is stated to be engaged in the business of providing security services and the liability to goods and services tax is under reverse charge mechanism. Since outward supplies attract nil rate of tax, there is no requirement for payment of interest as well. 29.In light of the above, there is a direction to R1 to restore the registration in order to enable the portal to receive returns filed by the petitioner. 30.This Writ Petition is allowed. No costs. W.P.No.18017 of 2022: 31.The date of cancellation of registration is 09.11.2020. No doubt, limitation for availing remedial action in this regard, was extended by the Hon'ble Supreme Court in the case of In Re: Cognizance (supra). By order dated 28.02.2022, the Hon'ble Supreme Court extended the period for filing of appeal by 90 days, within which period suitable action seeking remedy ought to have been pursued before the authorities. 32.The period of protection, of 90 days, expired on 29.05.2022. However, the present Writ Petition has been filed only on 11.07.2022, and no explanation i....
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....s, notice or any communication shall be deemed to have been served on the date on which it is tendered or published or a copy thereof is affixed in the manner provided in sub-section (1). (3) When such decision, order, summons, notice or any communication is sent by registered post or speed post, it shall be deemed to have been received by the addressee at the expiry of the period normally taken by such post in transit unless the contrary is proved. 36.This is countered by the petitioner by drawing attention to Section 169(2), which deploys the terms 'tendered' 'published' or 'affixed'. Thus, according to petitioner, the absence of the term 'uploaded' as a mode of service, is conscious, and should not be taken to be proper service. 37. I find no merit in this argument. In my view, making an order available on the common portal would tantamount to 'tendering' of that order to the recipient. That apart, I am also unable to ascribe any conscious intention on the part of the Legislature to exclude uploading as one of the modes of service. This argument is rejected. 38.There is yet another aspect to the matter. The Income Tax Act 1961 permits uploading of orders upon the portal, or....
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.... delay has been set forth except to state that the order was not served through registered post or any other mode of substituted service other than uploaded on the portal. 45.I have, in W.P.No.25666 of 2022, decided the above issue against the assessee (paragraphs 33 to 41 above) and the same order is taken to be passed in this Writ Petition as well. This Writ Petition stands dismissed. No costs. W.P.No.30081 of 2022: 46.The order of cancellation is dated 08.06.2022 and the period of 120 days, which includes a period of 30 days that may be condoned, expires on 06.10.2022. This Writ Petition has been filed on 07.11.2022 with a delay of 31 days. The entirety of the tax and interest is stated to have been admittedly remitted. 47.Learned Standing Counsel does not have any serious objection to the appellate authority entertaining the appeal, bearing in mind the quantum of delay of 31 days only. 48.In light of the above, the petitioner is permitted to move the appellate authority within a period of four (4) weeks from date of receipt of this order. Appeal, if filed within the time frame as aforesaid, will be taken on file by the appellate authority without reference to limitation, b....
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....sts. Matters coming under the SGST Act W.P.No.30356 of 2022: 57.The petitioner has challenged an order in first appeal. Normally, the Writ Petition would have been maintainable seeing as there is no Tribunal constituted in terms of the provisions of Section 112 of the Tamil Nadu Goods and Services Tax Act, 2017. However, the reason for rejection of the statutory appeal is that the appeal had been preferred beyond the statutory period of condonation as the authority is not empowered under the Statute to condone delay beyond a period of 90 + 30 days. No explanation is set out for filing the appeal belatedly. 58.That apart, the impugned order is dated 02.11.2022 and the present Writ Petition has been filed on 10.11.2022. 59.In light of the discussion as above, there is no merit in this Writ Petition and the same is dismissed. No costs. W.P.No.30144 of 2022: 60. The order of cancellation of registration is dated 02.05.2022, as against which, either application for revocation ought to have been filed within 30 days, on or before 02.06.2022, or appeal within 120 days (including 30 days of extended period), on or before 02.09.2022. The appeal has been filed on 06.10.2022 and the sa....
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....7.2022 without assigning any reason for the intervening delay. I thus find no justification to intervene in the impugned order and the same is confirmed. 70. This Writ Petition is dismissed. No costs. W.P.No.25964 of 2022: 71. The order of cancellation is dated 21.03.2022, as against which appeal was filed on 20.07.2022 with a delay of 16 days. However, the said appeal has been rejected as being beyond the statutory period of limitation. 72. The petitioner has furnished an explanation for the delay that had been occasioned at paragraph 3 of the affidavit being Covid - 19 pandemic. This Court is persuaded to accept the explanation tendered. 73. In such circumstances, and there being no serious objection by the learned counsel for the respondent for the relief sought, the appeal is restored to the file of the appellate authority, who shall proceed to hear the same on merits and pass orders expeditiously, and in accordance with law. 74. The impugned order is set aside and this Writ Petition is allowed. No costs. W.P.No.26608 of 2022: 75. The order of cancellation is dated 28.11.2019 and the present Writ Petition has been filed on 27.09.2022 without assigning any justifiable re....
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....tion by way of statutory appeal before the first appellate authority with a delay of 90 days. 87. The appeal ought to have been filed on or before 07.07.2022, but has been filed only on 21.09.2022 and the appeal is pending as on date. The petitioner is a senior citizen and has filed sufficient proof to indicate medical ailments. 88. In light of the aforesaid circumstances and there being no serious objection by the learned Government Advocate to the relief proposed to be granted by this Court, there is a direction to the appellate authority/R2 to dispose the appeal filed by the petitioner on 21.09.2022 on merits and in accordance with law, without reference to limitation, but ensuring compliance with all other statutory conditions, if any. Mandamus as sought for is issued. 89. This Writ Petition is disposed as above. No costs. W.P.No.27816 of 2022: 90. The order of cancellation is dated 09.03.2022, as against which appeal was filed on 12.08.2022 with a delay of 34 days. However, the said appeal has been rejected as being beyond the statutory period of limitation. 91. The petitioner has furnished some explanation for the delay stating that with the great difficulty, the petiti....
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....The order of cancellation of registration is dated 21.02.2022, as against which appeal was filed on 05.07.2022 with a delay of 15 days. However, the said appeal has been rejected as being beyond the statutory period of limitation. 103. The petitioner has furnished some explanation for the delay stating that the petitioner is unable to continue its business due to COVID-19 pandemic, which the Court finds acceptable. 104. In such circumstances, and there being no serious objection by the learned counsel for the respondent, the appeal is restored to the file of the appellate authority/R2, who shall hear the same on merits and pass orders expeditiously, and in accordance with law. 105. The impugned order is set aside and this Writ Petition is allowed. No costs. W.P.No.28415 of 2022: 106. The order of cancellation of registration is dated 21.04.2022, as against which revocation application has been filed within the time prescribed under the Statue. However, the same has been rejected on 17.05.2022. The order is vague and non-speaking and merely states that there has been no compliance with notice dated 05.05.2022. 107. Learned counsel for the petitioner would submit that the petit....
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....01.2022 and the last date for filing of appeal was 05.05.2022. The present Writ Petition has been filed on 02.11.2022 without assigning any reason for the intervening delay. I thus find no justification to intervene in the impugned order and the same is confirmed. 118. This Writ Petition is dismissed. No costs. W.P.No.29438 of 2022: 119. The order of cancellation of registration is dated 09.12.2021 and the last date for filing of appeal was 09.04.2022. The present Writ Petition has been filed on 03.11.2022 without assigning any reason for the intervening delay. I thus find no justification to intervene in the impugned order and the same is confirmed. 120. This Writ Petition is dismissed. No costs. W.P.No.29745 of 2022: 121. The order of cancellation of registration is dated 06.10.2020 and the last date for filing of appeal was 06.02.2021. The present Writ Petition has been filed on 02.11.2022 without assigning any reason for the intervening delay. I thus find no justification to intervene in the impugned order and the same is confirmed. 122. This Writ Petition is dismissed. No costs. W.P.No.29775 of 2022: 123. The order of cancellation of registration is dated 12.11.2019 a....
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....his Writ Petition on 09.11.2022. 135. The petitioner had set out some explanation in the affidavit filed in support of the Writ Petition stating that she is not familiar with the procedures involved in initiating the litigation, which this Court finds acceptable. 136. In light of the aforesaid, the petitioner is permitted to file an appeal before the appellate authority within a period of four (4) weeks from date of receipt of this order. Appeal, if any, filed within the time frame fixed, shall be entertained by the appellate authority without reference to limitation, but ensuring compliance with all other statutory conditions, if any, and disposed in accordance with law. 137. This Writ Petition is dismissed with liberty as above. No costs. W.P.No.30241 of 2022: 138. The order of cancellation of registration is dated 09.05.2022 and the last date for filing of appeal was 09.09.2022. The present Writ Petition has been filed on 07.11.2022. The petitioner is a company and the only reason that has been given for the delay in availing remedial measures is that it was unaware of the methodology for seeking revocation, which in the considered view of the Court does not merit acceptanc....