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TMI Blog2020 (10) TMI 1296X X X X Extracts X X X X X X X X Extracts X X X X ..... PS3145H1Z9 ZA080720067690H dated 21.07.2020 Superintendent, CGST Range-XXXIII, Division-G, Sikar Brief facts of the case: 2. Brief facts of the case are that the Proper Officer i.e. Jurisdictional Range Superintendent issued show Cause Notice in the Form GST REG-17 dated 04.02.2020 due to non filing of statuary returns for three consecutive tax periods; or for a continuous period of six months under clause (b) or clause (c) of sub-section (2) of section 29 of the CGST Act, 2017. Further, the appellant did not appear to be filed pending returns nor submitted any reply to the SCN dated 04.02.2020 and also not attended for personal hearing. Hence, after consideration of the facts available on records the proper officer cancelled the GSTIN of the appellant and also determined the tax liability amounting to Rs. 1,59,440/- to be payable by the appellant in the matter vide order ZA080720067690H dated 21.07.2020. 3. Being aggrieved with the impugned order as mentioned in Table No. 1, the appellant has filed the appeal prescribed under Section 107(1) of CGST Act, 2017 as mentioned below: S. No Name of appellant Date of Order Date of filing appeal Delay in filing appeal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y. - "(1) Any person aggrieved by any decision or order passed under this Act or the State Goods and Services Tax Act or the Union Territory Goods and Services Tax Act by an adjudicating authority may appeal to such Appellate Authority as may be prescribed within three months from the date on which the said decision or order is communicated to such person. .... (4) The Appellate Authority may, if he is satisfied that the appellant was prevented by sufficient cause from presenting the appeal within the aforesaid period of three months or six months, as the case may be, allow it to be presented within a further period of one month." 7. I observed that in the instant cases the appeal has been filed by delay from the normal period prescribed under Section 107(1) of the CGST Act, 2017. I find that though the delay in filing the appeal is condonable only for a further period of one month provided that the appellant was prevented by sufficient cause from presenting the appeal is shown and the delay of more than one month is not condonable under the provisions of sub section (4) of Section 107 of the Central Goods and Service Tax Act, 2017. 8. I find that Hon'ble Su ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n'ble Supreme Court vide its Order dated 27.04.2021 is applicable in respect of any appeal which is required to be filed before Joint/ Additional Commissioner (Appeals), Commissioner (Appeals), Appellate Authority for Advance Ruling, Tribunal and various courts against any quasi judicial order or where proceeding for revision or rectification of any order is required to be undertaken, and is not applicable to any other proceedings under GST Laws. " Keeping in view of above, I am inclined to condone the delay in view of above Hon'ble Supreme Court's Order, accordingly I proceeded to decide the case on merits. 10. I have gone through the facts of the case available on records and the written submissions made by the appellants in their appeal memo and oral submission during the course of personal hearing. I observe that SCN dated 04.02.2020 was issued for cancellation of registration in terms of clause (b) or clause (c) of sub-section (2) of section 29 of the CGST Act, 2017 by the proper office as the appellant had not filed returns for a continuous period of 6 months. Further, the proper officer vide order dated 21.07.2020 cancelled the registration effectively from 21 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... payable, tax paid and such other particulars, in such form and manner, and within such time, as may be prescribed: Provided that the Government may, on the recommendations of the Council, notes certain class of registered persons who shall furnish a return for every quarter or part thereof subject to such conditions and restrictions as may be specified therein. ..... [(7) Every registered person who is required to furnish a return under sub-section (1), other than the person referred to in the proviso thereto, 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: Provided that every registered person furnishing return under the proviso to sub-section (1) shall pay to the Government, the tax due taking into account inward and outward supplies of goods or services or both, input tax credit availed, tax payable and such other particulars during a month, in such form and manner, and within such time, as may be prescribed: Provided further that every registered person furnishing return under sub-section (2) shall pay to the Government, the tax due taking in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... filed pending returns by the proper officer. 15. The appellant has contended that the demand in the cancellation order is determined without passing order under Section 62 of the Act. The demand order is adhoc basis, not speaking and does not explain the reason of demand. Section 62 of the CGST Act, 2017 provides that: Section 62. Assessment of non-filers of returns.- (1) Notwithstanding anything to the contrary contained in section 73 or section 74, where a registered person fails to furnish the return under section 39 or section 45, even after the service of a notice under section 46, the proper officer may proceed to assess the tax liability of the said person to the best of his judgment taking into account all the relevant material which is available or which he has gathered and issue an assessment order within a period of five years from the date specified under section 44 for furnishing of the annual return for the financial year to which the tax not paid relates. (2) Where the registered person furnishes a valid return within thirty days of the service of the assessment order under sub-section (1), the said assessment order shall be deemed to have been withdrawn ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ancellation of registration at the common portal, either directly or through a Facilitation Centre notified by the Commissioner : Provided that no application for revocation shall be filed, if the registration has been cancelled for the failure of the registered person to furnish returns, unless such returns are furnished and any amount due as tax, in terms of such returns, has been paid along with any amount payable towards interest, penalty and late fee in respect of the said returns. [Provided further that all returns due for the period from the date of the order of cancellation of registration till the date of the order of revocation of cancellation of registration shall be furnished by the said person within a period of thirty days from the date of order of revocation of cancellation of registration : Provided also that where the registration has been cancelled with retrospective effect, the registered person shall furnish all returns relating to period from the effective date of cancellation of registration till the date of order of revocation of cancellation of registration within a period of thirty days from the date of order of revocation of cancellation of registration ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to be furnished within a period of thirty days from the date of the order of revocation." 19. As discussed above, I find that the contention made in the grounds of appeal of the appellant is tenable and the order dated 21.07.2020 determining the liability of the appellant is not legally correct and proper. The appellant has filed returns upto date of cancellation of registration hence, I find that the appellant has substantially complied with the above said provisions of the CGST Act/Rules, 2017 in the instant case. At this stage the appellate authority is in no position to decide the issue on merit on the basis of available records presented by the appellant. The proper officer/adjudicating authority is required to examine the issue afresh on the available records in the matter and ascertain the tax liability of the appellant. Therefore, I am of the opinion that the registration of appellant may be considered for revocation by the proper officer. Accordingly, I allow the appeal of the appellant. Further, I order to the proper officer to consider the revocation application of the appellant after due verification of payment particulars of tax, late fee, interest, penalty & status ..... X X X X Extracts X X X X X X X X Extracts X X X X
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