TMI Blog2020 (3) TMI 477X X X X Extracts X X X X X X X X Extracts X X X X ..... viso to Sec. 29(2) of the CGST Act read with Rule 22 of the CGST Act, but also at the stage of passing the final order cancelling the registration as per Sec. 29(2)(c). In the instant case, the jurisdictional fact regarding the six months' continuous default on the part of the assessee is certainly fulfilled at the time of issuance of Ext.P-1 show cause notice dated 13.11.2019. Whereas, the said vital requirement of jurisdictional fact is non-existent as on the date of issuance of the impugned Ext.P-3 cancellation order dated 10.12.2019. If that be so, it is only to be held that the impugned order as per Ext.P-3 is illegal and ultra vires and is liable to be interdicted by this Court. Accordingly, it is ordered that the impugned Ext.P-3 order will stand quashed. Petition disposed off. - WP (C). No. 35159 OF 2019(T) - - - Dated:- 3-2-2020 - THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS FOR THE PETITIONER : SRI.HARISANKAR V. MENON SMT.MEERA V.MENON SMT.K.KRISHNA FOR THE RESPONDENT : SMT.THUSHARA JAMES, GOVT. PLEADER JUDGMENT ALEXANDER THOMAS, J. The prayers in the above Writ Petition (Civil) are as follows: (i) To quash Ext.P-3 order issue ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ... xxx xxx xxx (2) The proper officer may cancel the registration of a person from such date, including any retrospective date, as he may deem fit, where,-- (a) a registered person has contravened such provisions of the Act or the rules made thereunder as may be prescribed; or (b) a person paying tax under Section 10 has not furnished returns for three consecutive tax periods; or (c) any registered person, other than a person specified in Clause (b), has not furnished returns for a continuous period of six months; or (d) any person who has taken voluntary registration under sub-section (3) of Section 25 has not commenced business within six months from the date of registration; or (e) registration has been obtained by means of fraud, wilful misstatement or suppression of facts: Provided that the proper officer shall not cancel the registration without giving the person an opportunity of being heard. Rule 22 of the CGST Rules provides as follows: Rule 22. Cancellation of registration.-(1) Where the proper officer has reasons to believe that the registration of a person is liable to be cancelled under section 29, he shall i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... person paying tax under the provisions of Section 10 shall, for each quarter or part thereof, furnish, in such form and manner as may be prescribed, a return, electronically, of turnover in the State or Union territory, inward supplies of goods or services or both, tax payable and tax paid within eighteen days after the end of such quarter. (3) Every registered person required to deduct tax at source under the provisions of Section 51 shall furnish, in such form and manner as may be prescribed, a return, electronically, for the month in which such deductions have been made within ten days after the end of such month. (4) Every taxable person registered as an Input Service Distributor shall, for every calendar month or part thereof, furnish, in such form and manner as may be prescribed, a return, electronically, within thirteen days after the end of such month. (5) Every registered non-resident taxable person shall, for every calendar month or part thereof, furnish, in such form and manner as may be prescribed, a return, electronically, within twenty days after the end of a calendar month or within seven days after the last day of the period of registration specifi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aying tax under Section 10 or Section 51 or, as the case may be, under Section 52 shall furnish a return specified under subsection (1) of Section 39 in FORM GSTR-3 electronically through the common portal either directly or through a Facilitation Centre notified by the Commissioner. (2) Part A of the return under sub-rule (1) shall be electronically generated on the basis of information furnished through FORM GSTR-1, FORM GSTR-2 and based on other liabilities of preceding tax periods. (3) Every registered person furnishing the return under sub-rule (1) shall, subject to the provisions of Section 49, discharge his liability towards tax, interest, penalty, fees or any other amount payable under the Act or the provisions of this Chapter by debiting the electronic cash ledger or electronic credit ledger and include the details in Part B of the return in FORM GSTR-3. (4) A registered person, claiming refund of any balance in the electronic cash ledger in accordance with the provisions of sub-section (6) of Section 49, may claim such refund in Part B of the return in FORM GSTR-3 and such return shall be deemed to be an application filed under Section 54. (5) Wher ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hat an assessee like the petitioner is bound to file return for the month concerned on or before the 20th of the succeeding month concerned. Further a reading of Sec. 29(2)(c) of the CGST Act would also disclose that it is mandated by the Legislature that if there is continuous six months' default on the part of the assessee in filing returns, then the competent authority can invoke the power under Sec. 29(2)(c) of the said Act to cancel the registration. In the instant case, Ext.P-5 is the tabular statement given by the petitioner as directed by this Court showing all the details of the tax paid and dates on which the respective monthly returns filed for the months from July, 2017 to July, 2019. 6. The respondents were directed by this Court to ascertain the factual correctness of the details in Ext.P-5 and more particularly as to whether the petitioner had indeed filed the return for the month of May, 2019 on 10.12.2019 as shown in Ext.P-2 series of documents. 7. The respondents do not have any serious dispute about the correctness of the details in Ext.P-5 tabular statement, more particularly regarding the returns filed for the relevant months. Both sides do not have ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of May, 2019 on 10.12.2019, he has continuous default of 5 months, ie. for the months from October, 2019 to June 2019 (5 months). For the month of November, 2019, the outer time limit for the petitioner for filing return is upto 20.12.2019 and for the month of December, 2019, the outer time in that regard is upto 20th January, 2020. Therefore, there does not appear to be any dispute on this crucial factual aspect. Therefore as on the date of the issuance of Ext.P-3 order dated 10.12.2019, the petitioner's continuous default in not filing return is only 5 continuous months and not 6 continuous months. 8. Sri.Sreelal N.Warrier, the learned Standing Counsel for the Central Board of Indirect Taxes, Government of India, appearing for respondents 2 and 4 was requested to get factual instructions on this aspect. Today, when the matter has been taken up for consideration, it is pointed out that the petitioner has filed returns for the month of May, 2019 on 10.12.2019 as per Ext.P-2 series and further that the petitioner has never informed the 4th respondent on 10.12.2019 about the factum of filing of the return for the month of May, 2019 on 10.12.2019. 9. This Court would certa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... orker; (iii) the expression special category States shall mean the States as specified in sub-clause (g) of Clause (4) of Article 279A of the Constitution. 11. Sec. 29(2)(c) mandates that power for the cancellation of registration in a case where there is continuous six months' default on the part of the assessee in filing the returns. Since the competent official is obliged to issue a notice in the nature of Ext.P-1 before he passes final orders, it goes without saying that the requirement of 6 months' continuous period should be fulfilled both at the time of issuance of the abovesaid notice in terms of the proviso to Sec. 29(2) of the CGST Act read with Rule 22 of the CGST Act, but also at the stage of passing the final order cancelling the registration as per Sec. 29(2)(c). In the instant case, the jurisdictional fact regarding the six months' continuous default on the part of the assessee is certainly fulfilled at the time of issuance of Ext.P-1 show cause notice dated 13.11.2019. Whereas, the said vital requirement of jurisdictional fact is non-existent as on the date of issuance of the impugned Ext.P-3 cancellation order dated 10.12.2019. If that be ..... X X X X Extracts X X X X X X X X Extracts X X X X
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