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2014 (4) TMI 689 - HC - VAT and Sales TaxBusiness transaction after filing of application for cancellation VAT registration but in the absence of any order from the VAT authorities assuming that registration was not cancelled - What would be the effect of withdrawal of application seeking cancellation of registration before the order of conciliation passed on an application u/s 27(1) of Gujarat VAT Act is communicated - Effect of withdrawal of application seeking cancellation of registration – Undated order - No evidence - Held that:- It is noticed that in the interregnum period, no order of cancellation was passed on his application dated 30/10/2007 - Neither from the material on the record nor from the affidavit in reply, the respondent could satisfy of passing of such order before the application for withdrawal of the earlier application for cancellation of registration reached to the authority - Admittedly, there has been no communication of such undated order of cancellation and the said order is communicated on 27th February 2009 where the cancellation had been made effective from 30th September 2007, a month prior to the date of the application which is the date of discontinuation of business of appellant. Whether undated order was passed prior to 17/2/2009 - No evidence - Held that:- It is also apparent from the pleadings and from the submissions that the official website of the respondent continued to reflect the status of the appellant as a registered dealer - Assuming that such reflection on the website may not have a bearing on the case of the appellant for such registration as the appellant as a dealer himself had applied for cancellation of the registration due to discontinuance of business and such information on the website of the Department is for the safeguarding the interest of the third parties - In absence of any material on record to indicate that pursuant to the first application u/s.27(1) any cancellation order in fact had been made by the concerned authority, this Court is of the firm opinion that before such order of cancellation had been passed when due communication of subsequent withdrawal of his earlier application has been effected, such subsequent cancellation by way of an order impugned dated 17th February 2009 deserves indulgence from this Court and the Tribunal certainly erred in holding that even in absence of communication of undated order, such order was valid - Whether in fact undated order was passed prior to 17/2/2009 itself is a serious question mark and therefore, Tribunal also erred in upholding validity of order of cancellation passed under subsection (1) of Section 27 of VAT Act when withdrawal was much prior to 17/2/2009. Absence of explicit provision for opportunity of hearing and communication – Held that:- It is noticed that in the event of the dealer himself applying for cancellation of registration u/s 27(2), there is no explicit provision for availing an opportunity of hearing to the dealer as he himself is the applicant volunteering for such cancellation, nor is there any express provision for communicating such order - The reflection of the status of the present dealer as a registered dealer on 26th January 2008 was on account of the official website not being updated - Such updation if not regularly done, confusion and disputes are found to consequently follow - To avert these factual disputes the communication of the order of cancellation of certificate of registration must be done, even if such cancellation is made pursuant to the application made by the dealer himself - Section 27(1) makes it incumbent upon the Commissioner to publish in the manner prescribed, status of the dealer when certificate of registration has been cancelled under the provisions of this Act - Resultantly, all the questions raised in this Appeal are answered in favour of the appellant - The Order of the Tribunal dated 1st May 2013 is set aside so also consequential order dated 17th February 2009 cancelling the registration of the petitioner – Decided in favour of assessee.
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