2025 (4) TMI 1637 - HC - GST

Dismissal of appeal filed by the petitioner has been dismissed on ground of it being time barred - failure to furnish returns for six months - HELD THAT - The impugned order for cancellation of registration with effect from 28.02.2022 under Section 29 (2) (c) of the CGST Act 2017 was issued on 08.07.2022 and the Petitioner had filed an appeal under Section 107 of the CGST Act which is the appellate provision on 29.09.2023 through online and hard copy of the same was submitted in the office of the appellate authority on 06.10.2023; as such after calculating the entire period it appears that the appeal has been filed after one year and three months beyond the normal period of filing of appeal as prescribed under Section 107 (1) of the CGST Act 2017. On plain reading of Section 107 makes the position crystal clear that the appellate authority has no power to allow an appeal to be presented beyond the period of one month for filing of appeal. The language used makes the position clear that the legislature intended the appellate authority to entertain the appeal by condoning delay only up to one month after the expiry of three months which is the normal period for preferring appeal. The proviso to sub-section (1) of Section 35 makes the position crystal clear that the appellate authority has no power to allow the appeal to be presented beyond the period of 30 days. The language used makes the position clear that the legislature intended the appellate authority to entertain the appeal by condoning delay only up to 30 days after the expiry of 60 days which is the normal period for preferring appeal. Therefore there is complete exclusion of Section 5 of the Limitation Act. The Commissioner and the High Court were therefore justified in holding that there was no power to condone the delay after the expiry of 30 days period. The Petitioner-Firm is not entitled for any relief on the ground of delay and latches coupled with the fact of being lethargic in approach; inasmuch as on the one hand the petitioner did not file return regularly and thus has not complied with GST REG-17/31 issued to him in any manner; and on the other hand the appellant filed appeal after delay of more than one year and three months which is admittedly beyond the period of limitation as per the Act. Conclusion - Neither there is any perversity in the order of cancellation of GST registration; nor there is any necessity for interference with the appellate order inasmuch as the same has been filed beyond the statutory period of limitation. Application dismissed.

1. ISSUES PRESENTED and CONSIDERED

The core legal questions considered by the Court in this matter are:

(a) Whether the cancellation of the petitioner's GST registration under Section 29(2)(c) of the Central Goods and Services Tax Act, 2017 ("CGST Act") for failure to furnish returns for six continuous months was valid and lawful.

(b) Whether the appellate order dismissing the petitioner's appeal against the cancellation on the ground of being time barred under Section 107 of the CGST Act was legally sustainable.

(c) Whether the petitioner was entitled to condonation of delay in filing the appeal beyond the prescribed limitation period under Section 107 of the CGST Act.

(d) Whether the petitioner was entitled to a writ of mandamus directing revocation of the cancellation of its GST registration.

2. ISSUE-WISE DETAILED ANALYSIS

Issue (a): Validity of Cancellation of GST Registration under Section 29(2)(c) of the CGST Act

The legal framework governing cancellation of registration is Section 29(2)(c) of the CGST Act, which empowers cancellation if a registered person fails to furnish returns for six consecutive months. The petitioner's registration was cancelled on 08.07.2022 with effect from 28.02.2022 on this ground.

The petitioner admitted non-filing of returns for the relevant period, attributing the failure to severe health issues of an active partner and extreme financial crisis. The petitioner also contended that the cancellation was done retrospectively without adequate reasons and that the returns for February 2022 were filed only on 19.09.2023, well after the cancellation.

The Court noted that the petitioner had been served with a show-cause notice in Form GST REG-17/31 and that the registration was suspended from 28.01.2022 before cancellation. The petitioner did not respond to the show-cause notice in time, and the reason stated for cancellation was "not responding in the matter."

Applying the law to facts, the Court found that the petitioner's failure to file returns for six continuous months justified cancellation under Section 29(2)(c). The retrospective effect of cancellation was consistent with the statutory provision. The petitioner's financial difficulties and health issues, while unfortunate, did not absolve the statutory obligation to file returns timely.

The petitioner's argument that Rule 23 of the CGST Rules precludes revocation unless returns along with interest and late fees are filed was acknowledged. However, since the returns were filed only after cancellation, the petitioner was precluded from seeking revocation timely.

Issue (b) and (c): Validity of Appellate Order Dismissing Appeal as Time Barred and Condonation of Delay

Section 107 of the CGST Act prescribes the limitation for filing appeal against an order passed under the Act. Sub-section (1) mandates filing within three months from the date of communication of the order, and sub-section (4) permits condonation of delay for a further period of one month if sufficient cause is shown.

The petitioner filed the appeal on 29.09.2023, against the cancellation order dated 08.07.2022, which was beyond one year and three months after the expiry of the prescribed period. The appellate authority dismissed the appeal as time barred.

The Court examined the statutory language of Section 107 and held that the appellate authority's power to condone delay is strictly limited to one month beyond the three-month period. The Court relied on binding precedent wherein the Supreme Court held that the appellate authority and the Tribunal, being creatures of statute, cannot condone delay beyond the statutory limit and that Section 5 of the Limitation Act does not apply to extend this period.

Applying the law to the facts, the Court found that the petitioner's appeal was filed well beyond the maximum permissible period of four months (three months plus one month condonation). The petitioner's plea of health issues and financial crisis was insufficient to justify condonation beyond the statutory limit.

The Court rejected the petitioner's contention that the High Court could condone delay under Article 226 of the Constitution, holding that the limitation prescribed by the CGST Act is mandatory and cannot be overridden by writ jurisdiction.

Issue (d): Entitlement to Mandamus for Revocation of Cancellation

The petitioner sought a writ of mandamus directing revocation of the cancellation. However, the Court declined to entertain the merits of the case because the appeal against cancellation was not filed within the statutory period. The Court emphasized that it cannot interfere with the cancellation order when the remedy of appeal was not exercised timely.

The petitioner's failure to comply with statutory timelines and procedural requirements disentitled it from seeking equitable relief or mandamus.

3. SIGNIFICANT HOLDINGS

"The appellate authority has no power to allow an appeal to be presented beyond the period of one month for filing of appeal. The language used makes the position clear that the legislature intended the appellate authority to entertain the appeal by condoning delay only up to one month after the expiry of three months which is the normal period for preferring appeal."

"The Commissioner of Central Excise (Appeals) as also the Tribunal being creatures of statute are not vested with jurisdiction to condone the delay beyond the permissible period provided under the statute. The period up to which the prayer for condonation can be accepted is statutorily provided."

"There is complete exclusion of Section 5 of the Limitation Act. The Commissioner and the High Court were therefore justified in holding that there was no power to condone the delay after the expiry of 30 days' period."

"The appeal filed after one year and three months beyond the normal period of filing of appeal as prescribed under Section 107 (1) of the CGST Act, 2017 is barred by limitation and cannot be entertained."

"Neither there is any perversity in the order of cancellation of GST registration; nor there is any necessity for interference with the appellate order, inasmuch as, the same has been filed beyond the statutory period of limitation."

The Court's final determination was that the cancellation of registration under Section 29(2)(c) was valid, the appeal was rightly dismissed as time barred, no condonation of delay beyond the statutory limit could be granted, and consequently, no mandamus for revocation could be issued. The writ petition was dismissed without costs.

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