9911796707
TMI Blog2020 (3) TMI 477X X X X Extracts X X X X X X X X Extracts X X X X ..... of India, appearing for additional respondents 3 & 4, and Dr.Thushara James, learned Government Pleader appearing for R-1 & R-2. 3. The factual aspects stated in this Writ Petition (Civil) are as follows:- That the petitioner is an assessee of goods and services tax on the roll of 4th respondent. That on account of financial crisis, the petitioner firm defaulted filing of returns from May, 2019 onwards. Thereupon, the 4th respondent had issued Ext.P-1 notice dated 13.1.2019 to the petitioner proposing to cancel the registration under Sec. 29(2)(c) of the CGST Act on account of the alleged non filing of the returns for a continuous six months' period. Thereafter, the 4th respondent has passed the impugned Ext.P-3 order ordering the cancellation of registration of the petitioner firm under Sec. 29(2) (c) of the CGST Act. The petitioner would point out that the abovesaid provision contained in Sec. 29(2)(c) of the CGST Act provides cancellation of the registration only if there is continuous default of six months in filing the returns. The main contention urged by Sri.Harisankar V.Menon, learned counsel appearing for the petitioner is to the effect that though the 4th respondent f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ellation of his registration is no longer liable to be registered or his registration is liable to be cancelled, the proper officer shall issue an order in FORM GST REG-19, within a period of thirty days from the date of application submitted under [sub-rule (1) of] 16 rule 20 or, as the case may be, the date of the reply to the show cause issued under sub-rule (1), cancel the registration, with effect from a date to be determined by him and notify the taxable person, directing him to pay arrears of any tax, interest or penalty including the amount liable to be paid under sub-section (5) of section 29. (4) Where the reply furnished under sub-rule (2) is found to be satisfactory, the proper officer shall drop the proceedings and pass an order in FORM GST REG - 20: Provided that where the person instead of replying to the notice served under subrule (1) for contravention of the provisions contained in clause (b) or clause (c) of sub-section (2) of section 29, furnishes all the pending returns and makes full payment of the tax dues along with applicable interest and late fee, the proper officer shall drop the proceedings and pass an order in FORM GST-REG 20 (5) The provisions ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... istered person, who is required to furnish a return under sub-section (1) or sub-section (2) or sub-section (3) or sub-section (5), shall pay to the Government the tax due as per such return not later than the last date on which he is required to furnish such return. (8) Every registered person who is required to furnish a return under sub-section (1) or sub-section (2) shall furnish a return for every tax period whether or not any supplies of goods or services or both have been made during such tax period. (9) Subject to the provisions of Sections 37 and 38, if any registered person after furnishing a return under sub-section (1) or sub-section (2) or sub-section (3) or sub-section (4) or sub-section (5) discovers any omission or incorrect particulars therein, other than as a result of scrutiny, audit, inspection or enforcement activity by the tax authorities, he shall rectify such omission or incorrect particulars in the return to be furnished for the month or quarter during which such omission or incorrect particulars are noticed, subject to payment of interest under this Act: Provided that no such rectification of any omission or incorrect particulars shall be allowed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... onically generated on the basis of information furnished through FORM GSTR-1, FORM GSTR-2 and based on other liabilities of preceding tax periods and PART B of the said return shall be electronically generated on the basis of the return in FORM GSTR-3B furnished in respect of the tax period; (b) the registered person shall modify Part B of the return in FORM GSTR-3 based on the discrepancies, if any, between the return in FORM GSTR-3B and the return in FORM GSTR-3 and discharge his tax and other liabilities, if any; (c) where the amount of input tax credit in FORM GSTR-3 exceeds the amount of input tax credit in terms of FORM GSTR-3B, the additional amount shall be credited to the electronic credit ledger of the registered person." Further, it has to be noted that Sec. 29(2) of the CGST stipulates as follows: "Sec. 29: Cancellation of registration.-- (1)... (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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... has passed Ext.P-3 cancellation order on the same date (10.12.2019). True as the filing of the return is through on-line process, the 4th respondent cannot be blamed for not knowing as on 10.12.2019 (date of issuance of Ext.P-3 order) that the petitioner has filed returns for the month of May, 2019 on the same day (10.12.2019). Moreover, the petitioner has also not informed the 4th respondent either on 10.12.2019 or immediately thereafter about the crucial fact that the petitioner has indeed filed the returns for the month of May, 2019 on 10.12.2019. But the fact of the matter is that since the petitioner had indeed filed returns for the month of May, 2019 on 10.12.2019 as per Ext.P-2, it goes beyond any doubt that as on the date of issuance of Ext.P-3 order dated 10.12.2019, the petitioner had only 5 months' continuous default and not the mandatory 6 months' continuous default, which is the essential jurisdictional fact required for invoking the power of cancellation of the registration under Sec. 29(2)(c) of the CGST Act. A perusal of the factual aspects in this case will disclose that the last return filed by the petitioner as per Ext.P-5 tabular statement is for the mon ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , if his aggregate turnover in a financial year exceeds twenty lakh rupees: Provided that where such person makes taxable supplies of goods or services or both from any of the special category States, he shall be liable to be registered if his aggregate turnover in a financial year exceeds ten lakh rupees. (2) Every person who, on the day immediately preceding the appointed day, is registered or holds a licence under an existing law, shall be liable to be registered under this Act with effect from the appointed day. (3) Where a business carried on by a taxable person registered under this Act is transferred, whether on account of succession or otherwise, to another person as a going concern, the transferee or the successor, as the case may be, shall be liable to be registered with effect from the date of such transfer or succession. (4) Notwithstanding anything contained in sub-sections (1) and (3), in a case of transfer pursuant to sanction of a scheme or an arrangement for amalgamation or, as the case may be, demerger of two or more companies pursuant to an order of a High Court, Tribunal or otherwise, the transferee shall be liable to be registered, with effect from ..... X X X X Extracts X X X X X X X X Extracts X X X X
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