TMI Blog2014 (4) TMI 689X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... passed by the opponent was valid, in absence of the communication of the said order to the appellant, if at all any order was passed prior to 17/02/2009? (B) Whether in the facts and circumstances of the case, the tribunal has erred in law in upholding the validity of the order for cancellation of the registration passed under Section 27(1) of the Gujarat Value Added Tax Act, 2003 when the appellant herein had already withdrawn the application for cancellation of registration much prior to the communication of the order dated 17/02/2009 as well as much prior to the communication of the earlier order, if any, in cancelling the registration? (C) Whether while passing the order under Section 27(1) of the Gujarat Value Added Tax Act, 2003 cancelling the registration on the application submitted by the registered dealer, the said order is required to be communicated to the registered dealer and what will be the consequence of the non communication of the decision of cancellation of the registration passed under Sub Section (3) of Section 27 of the Act? 2. Tax Appeal arises in the following factual background : 2.1 The appellant herein is a proprietary concern registered ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... was already made prior to the appellant moving for withdrawal of such application for cancellation, mere reflection on the website would have not bearing on the case of the appellant. 5. Aggrieved appellant, therefore, has preferred the present appeal raising aforementioned questions of law. Although substantial questions of law raised are three in number, all the three can be dealt with simultaneously as they raise a central issue as to what would be the effect of withdrawal of application seeking cancellation of registration before the order of conciliation passed on an application under section 27 (1) of Gujarat VAT Act is communicated ? 6. On issuance of notice, the respondent appeared and filed affidavitinreply wherein it is contended inter alia that the appellant ceased to carry out the business from 1st April 2006. The application moved on 30th October 2007 for cancellation should be deemed to have been accepted. The application moved subsequently had no bearing in as much as the earlier application was already given effect. It is further contended that Section 27(3) of the VAT Act would not require to provide any opportunity of hearing for passing an order of cancell ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... On 30th October 2007, he applied for cancellation of registration without surrendering the certificate of registration in the prescribed Form, as provided under subrule (1) of Rule 10 of the Gujarat Value Added Tax Rules, 2006 [ the Rules hereinafter]. In a standard formate, an application for cancellation of registration was made making a request for cancellation on account of his discontinuance of business from 30th September 2007. This application moved under subsection (8) of Section 27 require the respondent authorities to cancel the registration. It would be profitable to reproduce, at this stage, the provisions of Section 27, which reads thus 27. Suspension or cancellation of registration [ 1] Where ( a) any business in respect of which a certificate of registration has been issued to a dealer under this Act is discontinued; (b) in the case of transfer of whole business by a dealer, the transferee already hold a certificate of registration under this Act; (c) an incorporated body has been wound up or it otherwise ceases to exist; (d) the owner of a proprietorship business dies leaving no successor to carry on the business; (e) in case of a firm or assoc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... memorandum, with intention to defraud the Government revenue; (j) who has been found evading tax on account of variation in physical stock compared with his regular books of account; the Commissioner may at any time, for reasons to be recorded in writing and after giving the dealer an opportunity of being heard, cancel his certificate of registration from such date as may be specified by him. 5(A) (1) If a dealer ( a) has failed to inform changes as required under subsection (1) of section 26; (b) has failed to furnish return under section 29; (c) has failed to pay tax under section 30; (d) has failed to file declaration or intimate the changes as required under section 65 or 66; or (e) has failed to produce the books of account required under section 67, the Commissioner may, at any time, for reasons to be recorded in writing and after giving the dealer an opportunity of being heard, suspend his certificate of registration from such date not earlier than the date of order of suspension, as may be specified by him in the order. (2) where a dealer, whose certificate of registration is suspended for the failure of any of the requirements specified in subsecti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... issioner shall publish in the manner as may be prescribed in the particulars or dealers whose certificate of registration has been suspended or cancelled under the provisions of the Act. 10. We notice that these provisions provide for suspension or cancellation of registration. Subsection (3) of Section 27 provides that on receipt of such application for cancellation, if the registration authority is satisfied that all conditions specified in subsection (1) gets satisfied, the registration of such dealer requires to be cancelled. 10.1 Subsection (5) of Section 27 authorizes the Commissioner to cancel the certificate of registration on any of the grounds provided under subsection (1) of Section 27. The Commissioner in such circumstances avails an opportunity to the dealer of being heard and cancels certificate of registration from such date as may be specified by him. 10.2 Subsection (7) of Section 21 also provides that in the event of any business in respect of which certificate of registration had been issued has been discontinued or transferred, the dealer, if applies in the prescribed manner for cancellation of registration, the prescribed authority shall cancel the re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he authority for cancellation of his registration by way of his communication dated 30th October 2007. As provided under the statute, on his fulfilling the condition as provided under subsection (1) of Section 27, the cancellation of registration of such dealer at the hands of registration authority shall take place. There is nothing to indicate that any order of cancellation of the registration was passed pursuant to such application made by the petitioner. His subsequent communication dated 2nd July 2008 seeking withdrawal of his earlier application for cancellation of registration on account of his having received certain business reached to the concerned authority. We notice, as mentioned hereinbefore, that in the interregnum period, no order of cancellation was passed on his application dated 30/10/2007. Although, it is contended by the respondent authority that such order was passed, the order passed on the first communication was undated. Neither from the material on the record nor from the affidavitinreply, the respondent could satisfy us of passing of such order before the application for withdrawal of the earlier application for cancellation of registration reached to the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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