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CONVERSION OF PROVISIONAL REGISTRATION TO PERMANENT REGISTRATION

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CONVERSION OF PROVISIONAL REGISTRATION TO PERMANENT REGISTRATION
By: Mr.M. GOVINDARAJAN
January 21, 2021
All Articles by: Mr.M. GOVINDARAJAN       View Profile
  • Contents

Provisional registration

GST was introduced with effect from 1st July, 2017.  The erstwhile indirect tax assessees were liable to be transferred to the new regime.  For the purpose of registration under the new GST regime Section 138 (1) of the Central Goods and Services Tax Act, 2017 (‘Act’ for short) provides that on and from the appointed day (01.07.2017), every person registered under any of the existing laws and having a valid Permanent Account Number shall be issued a certificate of registration on provisional basis, subject to such conditions and in such form and manner as may be prescribed, which unless replaced by a final certificate of registration shall be liable to be cancelled if the conditions so prescribed are not complied with.  

Rule 24 provides that  every person, other than a person deducting tax at source or an Input Service Distributor, registered under an existing law and having a Permanent Account Number shall enroll on the common portal by validating his e-mail address and mobile number, either directly or through a Facilitation Centre notified by the Commissioner.  Thereafter the said person shall be granted registration on a provisional basis and a certificate of registration in Form GST REG-25, incorporating the Goods and Services Tax Identification Number therein, shall be made available to him on the common portal.   A taxable person who has been granted multiple registrations under the existing law on the basis of a single Permanent Account Number shall be granted only one provisional registration under the Act.

Permanent registration

The person, to whom provisional registration has been granted, has to apply in Form GST REG–26, duly signed or verified through electronic verification code, along with the information and documents specified in the said application, on the common portal.   The information asked for shall be furnished within a period of three months or within such further period as may be extended by the Commissioner in this behalf.

If the information and the particulars furnished in the application are found, by the proper officer, to be correct and complete, a certificate of registration in Form GST REG-06 shall be made available to the registered person electronically on the common portal.

Cancellation

Where the particulars or information have either not been furnished or not found to be correct or complete, the proper officer shall, after serving a notice to show cause in Form GST REG-27 and after affording the person concerned a reasonable opportunity of being heard, cancel the provisional registration granted under sub-rule (1) and issue an order in Form GST REG-28.   The  show cause notice issued in Form GST REG- 27 can be withdrawn by issuing an order in Form GST REG- 20, if it is found, after affording the person an opportunity of being heard, that no such cause exists for which the notice was issued.

The certificate of provisional registration issued to a person shall be deemed to have not been issued if the said registration is cancelled in pursuance of an application filed by such person that he was not liable to registration under section 22 or section 24.

Deemed registration

Where a certificate of registration has not been made available to the applicant on the common portal within a period of fifteen days from the date of the furnishing of information and particulars and no notice has been issued within the said period, the registration shall be deemed to have been granted and the said certificate of registration, duly signed or verified through electronic verification code, shall be made available to the registered person on the common portal.

In MADHAV MOTORS VERSUS STATE TAX OFFICER, DEPUTY COMMISSIONER OF STATE TAX, COMMISSIONER OF STATE TAX, GOODS AND SERVICE TAX NETWORK (GSTN) , GOODS AND SERVICES TAX COUNCIL, THE NODAL OFFICER FOR STATE GST [2020 (10) TMI 1174 - KERALA HIGH COURT] the petitioner is a dealer in automobiles.  The petition got registration under the erstwhile Kerala Value Added Tax.  On introduction of GST the petitioner applied for registration under GST Act.  The petitioner was granted registration in terms of section 139(1) of the Act.  In order to get a permanent registration under GST laws, the petitioner made attempts to upload the Form TRAN – 1 for conversion of the provisional registration to a permanent one and also for the purpose of claiming input tax credit in respect of tax paid on closing stock that was available with him at the time of the transition into the GST regime.

The petitioner could not able to convert the provisional registration to the permanent one.  In the meanwhile during November 2019 the petitioner tried to generate e-way bills through the web portal of the Department.  The petitioner could not able to generate e-way bills since the petitioner was not granted the permanent registration.  The provisional registration has not also been cancelled by the department.

The petitioner represented the department in this regard.  The Department issued a fresh certificate of registration to the petitioner on 04.01.2020.  The said certificate indicates that the liability of the petitioner is recognized by the Department with effect from 01.07.2017 i.e., from the date of introduction of GST.  The petitioner, therefore, approached the Department with the request to change the effective date of registration from 04.01.2020 instead of 01.07.2017.  The said request was rejected by the Department.  Therefore the petitioner filed the writ petition before the High Court.

The Revenue contended that the petitioner did not comply with the procedure prescribed under the Rules for conversion of the provisional certificate to a permanent registration under the Act and it is under these circumstances, the Department did not enable the system to accept any returns or applications for permanent registration from the petitioner.

The High Court observed the following on the facts and evidences produced before it-

  • The petitioner applied for a registration in accordance with Rule 24 and was granted a provisional registration.
  • The provisional registration granted to the petitioner has not been formally cancelled by the Department following the due procedure of law.
  • Therefore the petitioner continued to function under the provisional registration granted to him, although the absence of a permanent registration resulted in a situation where the petitioner could not upload the returns and other documents enabling him to claim the input tax credit in respect of the tax paid stock of material that was available with the petitioner.
  • The permanent registration was granted to the petitioner on 04.01.2020 indicating the liability from 01.07.2017.
  • Thus it is clear that the Department was aware that the petitioner fell under the category of dealers who were taking refuge under the transition clause Rule 24.
  • The petitioner contended that the validity of registration would commence from 04.01.2020.

The High Court was of the view that when the provisional registration granted to the petitioner was not cancelled through the procedure contemplated under the Act and Rules and the Department had granted a regular registration on 04.01.2020, the permanent registration must relate back to the provisional registration and the petitioner ought to be entitled to upload the returns for the past period and avail the eligible input tax credit based on the returns uploaded by the petitioner. 

The High Court directed the Department to amend the Registration certificate issued to the petitioner so as to make it valid from 01.07.2017 and permit the petitioner to upload the returns for the impugned periods and to pay tax as well as claim input tax credit based on the returns so uploaded.  The Department shall provide portal access to the petitioner within a month from the date of receipt of the copy of the judgment. 

 

By: Mr.M. GOVINDARAJAN - January 21, 2021

 

 

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