TMI Blog2022 (2) TMI 933X X X X Extracts X X X X X X X X Extracts X X X X ..... e provisions of the Act. At the same time, it is found that there are overwhelming reasons for granting reliefs to these petitioners to restore their registration. Sub Section (2) to Section 29 deals with a situation where, a proper officer may cancel the registration of a person from such date, including a retroprospective date, as he may deem such. All the cases under consideration fall under situation under Sub Clause (2)(c) i.e where a registered person other than the person specified in Clause (b) has failed to furnish returns for a continuous period of 6 months - All these petitioners were issued with a proper notice as is contemplated under the aforesaid provision. The orders were also passed after giving petitioners sufficient opportunity of being heard. Majority of the petitioners failed to respond notices issued by the respondent State Tax Officer proposing the cancellation of the registration of the respective petitioners. The time for filing appropriate application for revoking the cancellation of registration was extended either from date of service of the said cancellation order or 31.08.2020 which was later - all these petitioners whose registration had been ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e date of receipt of a copy of this order, if it has not been already paid - petition allowed. - W.P.Nos.25048, 25877, 12738, 17237, 20722, 20945, 21237, 21315, 23374, 24967, 25118, 25146, 25147, 25156 25678, 12683, 12685, 25026, 26026, 25705, 26187, 26190 & 14508 of 2021 and W.P.No.14241 of 2021 and W.P.Nos.507, 126 & 128 of 2022 - - - Dated:- 31-1-2022 - And W.M.P.Nos.26384, 26385, 27347, 27349, 27350, 13533, 18248, 18249, 21976, 26283, 26284, 27119, 27121 13471, 13472, 13473, 13475, 13476, 26355 , 27474, 27476 , 27394, 27395, 15403, 27636, 27638, 27638, 27642 27644 of 2021 and W.M.P.No.17715 of 2020 and W.M.P.Nos.132, 134 142 of 2022 Hon'ble Mr.Justice C. Saravanan For the Petitioner in W.P.Nos.25048, 25877, 17237, 24967 26026 of 2021 : Mr.B.Ramesh Kumar For the Petitioner in W.P.No.12738 of 2021 and W.P.No.14241 of 2020 : Mr.Adithya Reddy For the Petitioner in W.P.No.20722 of 2021 : Dr.A.Thiyagarajan, Senior Counsel for Mr.S.Karunakaran For the Petitioner in W.P.Nos.20945, 21237 23374 of 2021 : Mr.K.M.Malarmannan For the Petitioner in W.P.No.21315 of 2021 : Mr.S.Patrick For the Petitioner in W.P.No.25118 of 2021 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Certiorarified Mandamus:- i. to call for the records of the order of the respondent dated 30.09.2019 in Reference No.ZA3309191059645, ii. to quash the same, and iii. to direct the respondent to receive the petitioner's application for revocation of cancellation of its registration under Section 30(1) of the State Goods and Services Act, 2017. 2. 21315/2021 For issuance of a Writ of Mandamus, to direct the respondent to revoke the cancellation of the petitioner's GST Registration in GSTIN/UIN:33ABKFS8764L1ZF by considering the petitioner's representation dated 02.09.2021. 3. 25678/2021 For issuance of a Writ of Certiorari:- i. to call for the records on the files of the respondent in Reference Number ZA330219009465O dated 04.02.2019, and ii. to quash the same. 4 25026/2021 For issuance of a Writ of Certiorari:- i. to call for the records of respondent in his proceedings in Reference No.ZA331019014593A dated 04.10.2019, and ii. to quash the s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... For issuance of a Writ of Certiorari:- i. to call for the records relating to the order of the first respondent in Appeal No.238/2021 dated 23.09.2021, and ii. to quash the same. 12 25877/2021 For issuance of a Writ of Certiorari:- i. to call for the records relating to the order of the first respondent in Order-in-Appeal No.143/2021 dated 27.09.2021, and ii. to quash the same. 13 17237/2021 For issuance of a Writ of Certiorari:- i. to call for the records relating to the order of the first respondent in Appeal No.104/2021 dated 29.07.2021, and ii. to quash the same. 14 23374/2021 For issuance of a Writ of Certiorarified Mandamus:- i. to call for the records on the file of the first respondent with regard to the impugned order in R.C.No.1243/2021/A1 dated 16.08.2021, ii. to quash the same as illegal and arbitrary, and iii. to restore the petitioner's Registration GSTIN / 33DHKP-S2662N2ZPm so as to enable the petitioner for fi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ard to the impugned order passed in R.C.No.349/2021/A1 dated 29.03.2021, ii. to quash the same as illegal and arbitrary, and iii. to consequently direct the respondents to restore the petitioner's Registration No.GSTIN / 33FHS / PS6754P2Z2. 22 26187/2021 For issuance of a Writ of Certiorari:- i. to call for the records on the files of the second respondent in TNGST M.P.No.181/2021 dated 27.07.2021, and ii. to quash the same as being without jurisdiction and authority of law and contrary to the principles of natural justice. 23 20945/2021 For issuance of a Writ of Certiorarified Mandamus:- i. to call for the records on the file of the first respondent with regard to the impugned order passed in R.C.No.875/2021/A1 dated 06.09.2021, ii. to quash the same as illegal and arbitrary, and iii. to direct the respondents to restore the petitioner's Registration No.GSTIN/33AAACQ3485A1ZU so as to enable the petitioner for filing returns. 24 25146/2021 25147/2021 25156/2021 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 8 23374/2021 07.01.2019 22.01.2019 16.08.2021 - 9 20945/2021 14.08.2018 29.08.2018 06.09.2021 - 10 20722/2021 26.10.2018 16.11.2018 30.04.2021 - 11 25146/2021 13.05.2019 27.05.2019 27.08.2021 - 12 25147/2021 16.10.2019 30.10.2019 27.08.2021 - 13 25156/2021 16.10.2019 30.10.2019 27.08.2021 - 14 25118/2021 10.10.2019 30.10.2021 - 03.11.2021 15 24967/2021 19.12.2018 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... wherein the petitioner was called upon to show cause as to why the registration granted to the petitioner should not be cancelled on the ground that the petitioner has not filed the returns for a continuous period of six months. The petitioner was directed to appear for personal hearing on 31.07.2019. 6. He further submitted that thereafter, by an order dated 19.08.2019, the second respondent cancelled the GST registration of the petitioner. In these circumstances, the petitioner preferred an appeal before the Appellate Deputy Commissioner on 02.08.2021 which was admittedly beyond the period of limitation prescribed under Section 107 of the TNGST Act, 2017. The first respondent dismissed the appeal on the ground of limitation. 7. Opposing the prayer in W.P.No.25048 of 2021, Mr.N.R.R.Arun Natarajan, the learned Special Government Pleader appearing on behalf of the respondents submits that the petitioner has not opted any of the concession granted by the Central Board of Indirect Taxes and Customs vide Notification No.1 of 2020, dated 25.06.2020 or further extension granted on 29.08.2021 vide Notification No.34 of 2021 Central Tax, issued by the Department of Revenue, Ce ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... arified the position in terms of Circular No.158/14/2021 GST issued by the Department of Revenue, Central Board of Indirect Taxes and Customs, dated 06.09.2021 and therefore, there is no merits in the impugned order. 15. Opposing the prayer in W.P.No.25877 of 2021, Mr.A.P.Srinivas, learned Senior Standing Counsel appearing on behalf of the respondents would submit that the petitioner has filed the appeal belatedly and therefore, the appeal has been correctly rejected by the first respondent. 16. That apart, it is submitted that the petitioner has also not opted for revocation of cancellation of registration in terms of the amnesty scheme and relaxation given by the Government. It is therefore submitted that the Writ Petition filed by the petitioner is liable to be dismissed. 17. The learned Senior Standing Counsel would also submit that the order of the learned Single Judge in W.P.Nos.20083 20086 of 2021 dated 22.09.2021 is not relevant to the facts of the present case. Further, he would submit that the Hon'ble Division Bench of this Court had also dismissed the plea of few dealers who had approached the authorities belatedly. In this connection, a refere ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the specific case of the petitioner in W.P.No.12738 of 2021that a part of the aforesaid amount of ₹ 49,58,029/- was paid prior to the issuance of the aforesaid notification dated 25.06.2020 and partly after another extension was granted vide Notification No.34 of 2021 Central Tax, issued by the Department of Revenue, Central Board of Indirect Taxes and Customs, dated 29.08.2021. 25. The learned counsel for the petitioner in W.P.No.12738 of 2021 further submits that under the above notifications, a fresh period of limitation was given to the persons whose registration has been cancelled under clause (b) or (c) of sub-section (2) of Section 29 of the Act and the time limit for making an application for revocation of cancellation of registration under sub-section (1) of Section 30 of the Act fell during the period starting from 1st day of March 2020 to 31st day of August 2021 and the time limit for making such application stood extended upto 30th September 2021. 26. The learned counsel for the petitioner further submits that by virtue of these notifications, though some of the dealers were able to get their registration restored, the petitioner was unable to restore ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... it Petition and challenged the order of the Appellate Commissioner under Section 107 of the GST Act, 2017 and this Court intervened by its order dated 22.09.2021 in W.P.Nos.20083 20086 of 2021 and disposed the Writ Petitions with the following observations:- 11.In the light of the narrative thus far, the following order is passed: (a) The second impugned order i.e., order made by the second respondent in Appeal No.102 of 2021 being order dated 22.07.2021 is set aside solely to facilitate the writ petitioner to apply for revocation under Section 30 of TN Goods and ST Act; (b) As the order of the Appellate Authority i.e., second respondent is set aside solely to facilitate the writ petitioner to get the advantage of extended time frame seeking revocation, it is made clear (though obvious) that no view or opinion on merits of the matter has been expressed qua second impugned order; (c) It is open to the writ petitioner to apply for revocation under Section 30 of TN Goods and ST Act on or before 30.09.2021 and if the writ petitioner chooses to do so, a proper officer shall consider the revocation application on its own merits and in accordance with ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rns. It is further submitted that as per the second proviso, the time that was extended was 30 days and therefore, there is no merits in this Writ Petition. 34. By way of a re-joinder, Mr.Adithya Reddy, the learned counsel for the petitioner in W.P.No.12738 of 2021 submits that the difficulty is on the account of the architecture of the web portal of the respondent as the petitioner has paid the amount but the web portal does not open up to entertain the application filed under Section 30(1) of the respective GST Act for revocation of the registration r/w Rule 22 of CGST Rules. 35. Mr.Adithya Reddy, the learned counsel for the petitioner in W.P.No.12738 of 2021 has drawn the attention of this Court to Circular No.158/14/2021 GST issued by the Department of Revenue, Central Board of Indirect Taxes and Customs, dated 06.09.2021 wherein it has been clarified as follows: 3.Application covered under the scope of the said notification 3.1..... (i). ... (ii). .... (iii). .... (iv). ..... (v). application for revocation of cancellation of registration was filed, the proper officer rejected the application and the appeal has been ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er has not filed an application for revocation in time and therefore, the case of the petitioner would not come within its purview. 43. Assisting the Court, Mr.Adithya Reddy, the learned counsel for the petitioner in W.P.Nos.12738 of 2021 14241 of 2020 would submit in a somewhat identical situation where one of the assessee had preferred a Writ Petition and challenged the order of the Appellate Commissioner under Section 107 of the GST Act, 2017, this Court intervened by its order dated 22.09.2021 in W.P.Nos.20083 20086 of 2021. 44. In W.P.No.20722 of 2021 , the petitioner has challenged the impugned dated 16.11.2021 passed by the respondent, for cancellation of GST Registration in respect of Show Cause Notice dated 26.10.2018. 45. Dr.A.Thiyagarajan, the learned Senior Counsel for the petitioner submits that the respondent issued a Show Cause Notice dated 26.10.2018 to the petitioner under Section 29(2)(c) of TNGST ACT, i.e. for non-filing of returns for a continuous period of six months. The petitioner filed a reply to the Show Cause Notice vide letter dated 08.11.2018 stating that there was no sufficient transaction, for filing of returns. Thereafter, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d. 53. It is to be noted that the Appellate Commissioner has dismissed the appeal preferred by the petitioner with the following observations:- (iv). In the appellants case, the order of cancellation of registration has been communicated to the appellants on 29.08.2018 through online. The appellants had time till 28.11.2018 to file appeal against the order of cancellation before this forum. Further as per Section 107(4) of the TNGST Act, 2017 the appellant also had one month time for sufficient cause from non-presenting the appeal within the period of three months as per Section 107(1) of the TNGST Act. Such time of further one month expired on 28.12.2018. 54. In W.P.No.21237 of 2021 , the petitioner has challenged the impugned order dated 29.03.2021 passed by the first respondent viz., Appellate Commissioner rejecting the appeal preferred by the petitioner against the order passed by the second respondent dated 08.10.2018 by which the registration of the petitioner was cancelled under the provisions of the TNGST Act, 2017. 55. Mr.K.M.Malarmannan, the learned counsel for the petitioner in W.P.No.21237 of 2021 submits that the petitioner has filed an appeal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eginning of December, the petitioner fell ill and he could not carry on his business and incurred financial losses and therefore, the petitioner could not appear for personal hearing. 61. Mr.S.Patrick, the learned counsel for the petitioner in W.P.No.21315 of 2021 submits that the registration of the petitioner was cancelled on 01.02.2019 and therefore, if a chance is given to the petitioner, the petitioner will be able to explain as to why the petitioner could not file his returns in time. 62. Further, in paragraph 9 of the affidavit filed in support of the W.P.No.21315 of 2021, the petitioner has stated as follows:- 9. I state that there are no pending GST dues from before the date of cancellation of the GST Registration. I also submit that I have duly filed my GST returns until February, 2019, after which I was unable to file my returns/pay due to the cancellation of the GST Registration. I undertake to file my returns and pay all of my due and any late fees within a period of 4 weeks or any time period as directed by this Hon'ble Court. 63. Opposing the prayer in W.P.No.21315 of 2021, Mr.N.R.R.Arun Natarajan, the learned Special Government Pleader ap ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 70. The learned Special Government Pleader further submits that there is no clarity as to whether the petitioner has filed the returns while filing an appeal before the Appellate Commissioner and therefore, for the reasons stated above, the Writ Petition is liable to be dismissed. 71. In W.P.No.24967 of 2021 , the petitioner has challenged the impugned order passed by the first respondent on 02.09.2021 by rejecting the appeal preferred by the petitioner against the order passed by the second respondent dated 07.02.2019 cancelling the GST registration of the petitioner under Section 29 of TNGST Act, 2017. 72. It is the specific case of the petitioner in W.P.No.24967 of 2021 that after the issuance of show cause notice dated 19.12.2018 calling upon the petitioner to reply for the same, the second respondent had passed an order on 07.02.2019 cancelling the registration of the petitioner. 73. Mr.B.Ramesh Kumaar, the learned counsel for the petitioner in W.P.No.24967 of 2021 would submit that as the show cause notice was sent through online and the petitioner saw the notice belatedly, the petitioner could not reply within the time limit and therefore, the petitioner had ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pected to extend the time period. It is further submitted that the petitioner was not vigilant enough to opt for any relaxation in terms of Notification No.1 of 2020, dated 25.06.2020 issued by the Central Board of Indirect Taxes and Customs and Circular No.158/14/2021 GST issued by the Department of Revenue, Central Board of Indirect Taxes and Customs, dated 06.09.2021. Thus, there is no merit in the case of the petitioner and the Writ Petition is liable to be dismissed. 80. In W.P.No.25146 of 2021 , the petitioner has challenged the impugned order dated 27.08.2021 passed by the Respondent for Revocation of cancellation of GST Registration in respect of Show Cause Notice dated 13.05.2019. The Respondent issued a notice dated 13.05.2019 to the petitioner u/s 29(2)(c) of TNGST Act , i.e. for non-filing of return for a period of Six months. The petitioner filed a reply to the Show Cause Notice vide letter dated 21.05.2019. Thereafter, the respondent had passed an order for cancellation of GST registration dated 27.05.2019. 81. Mr.Ashish, the learned counsel for the petitioner in W.P.No.25146 of 2021 submits that aggrieved by the order of the respondent, the petitioner fi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er submits that the petitioner, aggrieved by the order of the respondent, filed an application, against cancellation of the registration praying for Revocation of cancellation of registration which was numbered as Rc.No.1289/2021/A1. Though all tax returns and dues had been filed the said appeal was dismissed by the respondent on the ground that there was delay in filing appeal (appeal was filed by delay of One Year and Nine Months). The maximum limitation period is 3 Months and (additional 1 Month may be granted ) as per Section 107 of GST Act, 2017. 88. In W.P.No.25678 of 2021 , the petitioner has challenged the impugned order dated 04.02.2019 passed by the respondent revoking the GST registration of the petitioner under Section 29 of the TNGST Act, 2017. 89. It is the further case of the petitioner in W.P.No.25678 of 2021 that the petitioner has also paid the late fee of ₹ 16,000/- for filing the returns on 29.10.2021. It is further submitted that right after the inception of GST, the petitioner has been out of business and therefore, there is no tax liability and hence, the petitioner is only required to file NIL returns all through the period. 90. Mr.R.Se ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e learned counsel for the petitioner in W.P.No.12683 12685 of 2021 submits that the respondents issued a Show Cause Notice dated 21.10.2019 to the petitioner under Section 29(2)(c) of TNGST Act., i.e. for non-filing of returns for a continuous period of six months. 96. He further submits that the first respondent had granted seven days time for filing of objection and directed the petitioner to appear for personal hearing dated 23.10.2019. However the petitioner failed to mark his presence before the first respondent, for which the respondent passed an order dated 05.11.2019 cancelling the registration of the petitioner. 97. It is submitted that the petitioner having filed the returns for the Months of April 2019 to October 2019 and have paid necessary taxes on 09.03.2019,the petitioner tried to file an application for revocation of the registration certificate, but the said application was denied by the portal. So, the petitioner made a statutory appeal before the second respondent on 13.03.2021 challenging the order dated 05.11.2019 passed by the first respondent. The ground on which the petitioner filed an appeal is that, there are 100 workers employed and so if the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n in terms of Section 30(1) of the TNGST Act, 2017 r/w Rule 22 of the TNGST Rules, 2017 and therefore, submits that the Writ Petition is devoid of merits and have to be dismissed. 103. By way of rejoinder, Mr.C.Subramanian, the learned counsel for the petitioner in W.P.No.25026 of 2021submits that the Government has issued relaxation in terms of Notification No.1 of 2020, dated 25.06.2020 issued by the Central Board of Indirect Taxes and Customs and Circular No.158/14/2021 GST issued by the Department of Revenue, Central Board of Indirect Taxes and Customs, dated 06.09.2021 and those Orders/Circulars implementing the orders passed by the Hon'ble Supreme Court dated 08.03.2021 and 23.09.2021 ought to be applied to the facts of the case and accordingly, the time granted has to be extended. 104. The petitioner in W.P.No.14508 of 2021 had received a show cause notice dated 21.10.2019 in Form GST REG-17 to show cause as to why the GST Registration of the petitioner should not be cancelled. On account of the fact that the petitioner had failed to pay the tax to the account of the Central/State Government beyond a period of three months from the date of such payment beco ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l Government Pleader takes notice on behalf of the respondents in W.P.Nos.126 128 of 2022.Opposing the prayer in W.P.Nos.126 128 of 2022, the learned Additional Government Pleader for the respondents submits that the decision of the Hon'ble Supreme Court suo motu extending the time filing the appeal and the limitation vide order dated 23.03.2020 and the subsequent enlargement of time is not applicable to the facts of the case inasmuch as the impugned order in W.P.No.126 of 2022 was passed long before the outbreak of Covid-19 pandemic and that the limitation for filing an appeal under Section 137 of the respective GST Acts and for revocation of the order cancelling the registration had expired and therefore submits that no case is made out for interference. It is the specific case as to whether the revenue stands to gain by cancelling the registration. 113. The learned Additional Government Pleader for the respondents submits that even though the Government is satisfactory with the revenue, the clarification of the registration implies that persons whose registration has been cancelled cannot carry out the business supplying service with tax and the respective GST ena ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... led is time barred. Hence the above appeal petition is dismissed. 118. The only ground on which the impugned order has been passed is that the appeal was filed beyond the time limit prescribed under Section 117 of the TNGST Act, 2017 for filing an appeal against the order dated 22.10.2019. The learned counsel for the petitioner would rely on the decision of the Hon'ble Supreme Court dated 23.03.2020 modified and extended by the subsequent order dated 08.03.2021 and finally by another order dated 23.09.2021. 119. Mr.N.R.R.Arun Natarajan, learned Special Government Pleader takes notice on behalf of the respondents in W.P.No.507 of 2022 reiterated the submissions already made in the batch. 120. In W.P.No.507 of 2022 , the petitioner has challenged the impugned order of the Appellate Deputy Commissioner (ST)(GST) in Appeal No.426 of 2021 dated 01.11.2021. The petitioner is an entrepreneur of the Mahalakshmi Engineering Company registered under the provisions of the GST Act, vide GSTIN/Temporary ID/UIN: 66AOLPV5995E2ZA 121. Mr.V.Kumaresan, the learned counsel for the petitioner in W.P.No.507 of 2022 submits that the petitioner had failed to file GST returns c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... T issued by the Department of Revenue, Central Board of Indirect Taxes and Customs, dated 06.09.2021 and those Orders/Circulars implementing the orders passed by the Hon'ble Supreme Court dated 08.03.2021 and 23.09.2021 ought to be applied to the facts of the case and accordingly, the relief sought for has to be granted. 129. The learned counsel for the petitioner in W.P.No.25705 of 2021 further submits that the petitioner is engaged in construction business and had no income and therefore, there is no tax liability. As far as returns are concerned, the petitioner has uploaded the returns and paid late fee of ₹ 11,500/- and therefore, prays for quashing the impugned order and directing the respondent to restore the GST registration of the petitioner. 130. Opposing the prayer in W.P.No.25705 of 2021, the learned Special Government Pleader Mr.N.R.R.Arun Natarajan appearing on behalf of the respondent would submit that the affidavit filed by the petitioner makes it clear that the petitioner undertakes to file the returns with payment of tax as and when this Court directs to do so and therefore, as on date of the filing of this Writ Petition, the petitioner has not ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t Taxes and Customs, dated 29.08.2021. The relevant portion of the said Notification reads as under:- G.S.R.....(E). In partial modification of the notifications of the Government of India in the Ministry of Finance (Department of Revenue), No. 35/2020-Central Tax, dated the 3 rd April, 2020, published in the Gazette of India, Extraordinary, Part II, Section 3, Sub-section (i), vide number G.S.R. 235(E), dated the 3 rd April, 2020 and No. 14/2021-Central Tax, dated the 1 st May, 2021, published in the Gazette of India, Extraordinary, Part II, Section 3, Subsection (i), vide number G.S.R. 310(E), dated the 1 st May, 2021, in exercise of the powers conferred by section 168A of the Central Goods and Services Tax Act, 2017 (12 of 2017) (hereafter in this notification referred to as the said Act), read with section 20 of the Integrated Goods and Services Tax Act, 2017 (13 of 2017), and section 21 of the Union Territory Goods and Services Tax Act, 2017 (14 of 2017), the Government, on the recommendations of the Council, hereby notifies that where a registration has been cancelled under clause (b) or (c) of sub-section (2) of section 29 of the said Act and the time limit for making ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cation was mentioned as You are requested to provide the details of interest paid in DR-03 and reversal of ineligible ITC with interest, if any for the period under cancellation. 144. The learned counsel for the petitioner submits that the respondent has no jurisdiction to examine the eligibility of petitioner's ITC. The respondent proceeded to reject petitioner's application for revocation vide order dated 07/09/2020 on the basis that, petitioner did not respond to the show cause notice. 145. It is further submitted that the respondent has assumed that the petitioner's ITC for the month of March 2019 to September 2019 was barred by time in terms of section 16(4) of the TNGST Act, which is considered to be illegal; In any event the respondent has no jurisdiction to scrutinize the returns filed by the petitioner and point out any defects. 146. In W.P.No.26026 of 2021 , the petitioner has challenged the impugned order dated 22.09.2021 passed by the first respondent for cancellation of GST Registration in respect of Show Cause Notice dated 19.12.2018. 147. Mr.B.Ramesh Kumar, the learned counsel for the petitioner submits that respondent issued a Sho ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d appeals before the Appellate Commissioner under Section 107 of the respective GST Acts belatedly beyond the period prescribed for condonation of limitation. 154. Some of the appeals filed against the order of cancellation of GST registration were rejected without numbering, while, some of the appeals were numbered and rejected on the ground that the time prescribed for appeal had existed. Appeals filed by these petitioners were dismissed as these appeals were filed not only beyond the statutory period of limitation prescribed under Section 107 of the respective GST Acts but also beyond the condonable period. 155. The law on the limitation has been well settled by the Hon ble Supreme Court. In this connection, a reference is invited to the decision of the Hon ble Supreme Court in M/s.Singh Enterprises Vs. Commissioner of Central Excise, Jamshedpur and Others , (2008) 3 SCC 70, wherein, it has been held that statuary appeal that filed beyond the statutory period for condonation of delay under Section 35 of the Central Excise Act, 1944 cannot be condoned. This position of law applies to the facts of these cases. 156. As original or as appellate authority exercising ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oved by the GST Implementation Committee in its meeting held on 31 August and 1 September 2017 and subsequently by the GST Council in its 21st Meeting held on 9 September 2017 are as follows: i. For taxpayers registered only under VAT, the total annual State turnover under VAT (including inter-State sales, exports and exempt goods) shall be taken as the basis for division; ii. For taxpayers registered under both VAT and Central Excise, the annual State turnover under VAT shall be taken as the basis for division as State-level Central Excise turnover is already included in it; iii. For taxpayers registered only under Central Excise (and not under VAT), the total annual turnover declared in Central Excise returns shall be taken as the basis for division; iv. For tax payers registered only under Service Tax in a State on a stand-alone basis, the annual turnover of the Services declared in the Service Tax returns shall be taken as the basis for division; v. For taxpayers registered only under Service Tax having centralized registration, the annual all-India turnover of the Services declared in the Service Tax returns shall be taken as the basis for di ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e enactments. 163. A comprehensive procedure has been prescribed in Chapter VI of the respective GST enactments in this regard. As per Section 22 of these enactments, every supplier is liable to register in the State or Union Territory, other than special category States, from where any taxable supply of goods or service or both, are made. Section 22 of the Act reads as under:- 22. (1) Every supplier shall be liable to be registered under this Act in the State or Union territory, other than special category States, from where he makes a taxable supply of goods or services or both, 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 registe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rom the territorial waters of India shall obtain registration in the coastal State or Union territory where the nearest point of the appropriate baseline is located. (2) A person seeking registration under this Act shall be granted a single registration in a State or Union territory: Provided that a person having multiple business verticals in a State or Union territory may be granted a separate registration for each business vertical, subject to such conditions as may be prescribed. (3) A person, though not liable to be registered under section 22 or section 24 may get himself registered voluntarily, and all provisions of this Act, as are applicable to a registered person, shall apply to such person. (4) A person who has obtained or is required to obtain more than one registration, whether in one State or Union territory or more than one State or Union territory shall, in respect of each such registration, be treated as distinct persons for the purposes of this Act. (5) Where a person who has obtained or is required to obtain registration in a State or Union territory in respect of an establishment, has an establishment in another State or Union ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... As far as cancellation or suspension of registration is concerned, Section 29 of the respective GST enactments deals with the same. Rule 22 respective of the respective GST Rules, 2017 implements the provisions of Section 29 of the GST enactment by prescribing procedure of cancellation. Section 29 of the respective GST enactment and Rule 22 of the respective GST Rules, 2017 are reproduced as under:- Section 29 of Central Goods and Services Tax Act 2017 - Cancellation of Registration Rule 22 of Central Goods and Services Rules, 2017 - Cancellation of registration (1) The proper officer may, either on his own motion or on an application filed by the registered person or by his legal heirs, in case of death of such person, cancel the registration, in such manner and within such period as may be prescribed, having regard to the circumstances where,- the business has been discontinued, transferred fully for any reason including death of the proprietor, amalgamated with other legal entity, demerged or otherwise disposed of; or there is any change in the constitution of the business; or th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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) The cancellation of registration under the State Goods and Services Tax Act or the Union Territory Goods and Services Tax Act, as the case may be, shall be deemed to be a cancellation of registration under this Act (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 sub-rule (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] 17 (5) Eve ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... from 1st July, 2017, there was no proviso to Section 30(1) of the Act. Section 30 of the respective GST enactments read as under:- Section 30 of - Revocation of Cancellation of Registration (1)Subject to such conditions as may be prescribed, any registered person, whose registration is cancelled by the proper officer on his own motion, may apply to such officer for revocation of cancellation of the registration in the prescribed manner within thirty days from the date of service of the cancellation order. (2)The proper officer may, in such manner and within such period as may be prescribed, by order, either revoke cancellation of the registration or reject the application: Provided that the application for revocation of cancellation of registration shall not be rejected unless the applicant has been given an opportunity of being heard. (3)The revocation of cancellation of registration under the State Goods and Services Tax Act or the Union Territory Goods and Services Tax Act, as the case may be, shall be deemed to be a revocation of cancellation of registration under this Act. 173. Only, a single window of opportunity was given to file ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ct to such conditions as may be prescribed, any registered person, whose registration is cancelled by the proper officer on his own motion, may apply to such officer for revocation of cancellation of the registration in the prescribed manner within thirty days from the date of service of the cancellation order. (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 issue a notice to such person in FORM GST REG-17,requiring him to show cause, within a period of seven working days from the date of the service of such notice, as to why his registration shall not be cancelled. (2) The proper officer may, in the manner and within such period as may be prescribed, by order, either revoke cancellation of the registration or reject the application: Provided that the application for revocation of cancellation of registration shall not be rejected unless the applicant has been given an opportunity of being heard. (2) The reply to the show cause notice issued under sub-rule (1) shall be furnished in FORM REG 18 within the period speci ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y period prior to the date of cancellation, whether or not such tax and other dues are determined before or after the date of cancellation. They also make it clear that cancellation of registration under anyone of the other GST enactments shall be deemed to be cancellation of registration under the other GST enactments. 179. None of the petitioners are coming within the limitation prescribed under Section 30 of the respective GST enactments except the petitioner in W.P.No.14241 of 2020 whose registration was cancelled vide order dated 13.11.2019. The said petitioner alone filed an application on 26.08.2020 before the Assistant Commissioner, the respondent in the said writ petitioner. 180. However, the respondent rejected the said application simply stating that the petitioner had not filed any reply to the Show Cause Notice dated 26.08.2020. A reading of the said Show Cause Notice dated 26.08.2020 merely states that the petitioner was requested to provide the details of interest paid in DRC-03 and reversal of ineligible ITC with interest, if any for the period under cancellation. 181. Appeals of the petitioners in W.P.Nos.23374, 20945, 20722, 25146, 25147, 25156, 212 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... portion of the said Notification reads as under:- 1. Short title .- This Order may be called the Central Goods and Services Tax (Removal of Difficulties) Order, 2020.- 2. For the removal of difficulties, it is hereby clarified that for the purpose of calculating the period of thirty days for filing application for revocation of cancellation of registration under sub-section (1) of section 30 of the Act for those registered persons who were served notice under clause (b) or clause (c) of sub-section (2) of section 29 in the manner as provided in clause (c) or clause (d) of sub-section (1) of section 169 and where cancellation order was passed up to 12th June, 2020 , the later of the following dates shall be considered:- a) Date of service of the said cancellation order; or b) 31st day of August, 2020. 187. The amnesty in the above Government Order pertains to cases where orders were passed upto 12.06.2020. This was the first opportunity given to /the petitioners in W.P.Nos.25048, 12738, 17237, 25877, 25026, 25146, 25147, 25156, 12683, 12685, 25705, 26190, 26187, 14241 14508 of 2021 and in W.P.Nos.126 128 of 2022 and the second chance for other ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on which the provisions of sections 119, 120, 121, 122, 123, 124, 126, 127 and 131 of the said Act shall come into force. [F.No. CBEC-20/06/04/2020-GST] 193. Parallel amendments were made to Rule 23 of the respective GST Rules and FORM GST REG-21 was amended vide Notification No.15/2021-Central Tax, Central Board of Indirect Taxes and Customs, dated 18.05.2021. Rule 23 (Revocation of Cancellation of Registration) of the respective GST Rules reads as under:- Rule 23 - Revocation of Cancellation of Registration 1) A registered person, whose registration is cancelled by the proper officer on his own motion, may submit an application for revocation of cancellation of registration, in FORM GST REG-21, to such proper officer, within a period of thirty days from the date of the service of the order of cancellation of registration [ or within such time period as extended by the Additional Commissioner or the Joint Commissioner or the Commissioner, as the case may be, in exercise of the powers provided under the proviso to subsection (1) of section 30,] a t the common portal, either directly or through a Facilitation Centre notified by the Commissioner: Pro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... larification from the applicant. 194. The above amendment however did not address the case of the petitioners whose registrations were cancelled after 31.03.2019 and before the above amendment to the Act as Rules with effect from 01.01.2021. 195. Thus, rest of the petitioners in W.P.Nos.25048, 12738, 17237, 25877, 25026, 25146, 25147, 25156, 12683, 12685, 25705, 26190, 26187, 14241 14508 of 2021 and in W.P.Nos.126 128 of 2022 also had no opportunity to file an application under the proviso to Section 30(1) of the Act. 196. These petitioners had only one option to file an application within a period of 30 days from the date of service of the order of cancellation of registration under Section 30(1) of the Act which had expired long back. 197. Still later, in view of the prevailing situation, Notification No.34/2021 Central Tax, Central Board of Indirect Taxes and Customs, dated 29.08.2021 was issued by the Central Government once again on the recommendation of the GST Council. Notification No.34/2021 Central Tax, Central Board of Indirect Taxes and Customs, dated 29.08.2021 which reads as under:- Government of India Ministry of Finance ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... larified as follows:- Paragraph No.3 Paragraph No.4 3.1. The said notification specifies that where the due date of filing of application for revocation of cancellation of registration falls between 1st March, 2020 to 31st August, 2021, the time limit for filing of application for revocation of cancellation of registration is extended to 30th September 2021. Accordingly, it is clarified that the benefit of said notification is extended to all the cases where cancellation of registration has been done under clause (b) or clause (c) of Sub-section (2) of Section 29 of the CGST Act, 2017 and where the due date of filing of application for revocation of cancellation of registration falls between 1st March, 2020 to 31st August, 2021. It is further clarified that the benefit of notification would be applicable in those cases also where the application for revocation of cancellation of registration is either pending with the proper officer or has already been rejected by the proper officer. It is further clarified that the benefit of notification would also be available in those cases which are pending with the appell ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e extended timelines as provided vide the said notification. 4. It may be recalled that, with effect from 01.01.2021, proviso to Subsection (1) of 30 of the CGST Act has been inserted which provides for extension of time for filing application for revocation of cancellation of registration by 30 days by Additional/Joint Commissioner and by another 30 days by the Commissioner. Doubts have been raised whether the said notification has extended the due date in respect of initial period of 30 days for filing the application (in cases where registration has been cancelled under clause (b) or clause (c) of subsection (2) of section 29+ of CGST Act, 2017) under sub-section (1) of section 30 of the CGST Act or whether the due date of filing applications for revocation of registration can be extended further for the period of 60 days (30+30) by the Joint Commissioner/Additional Commissioner/Commissioner, as the case may be, beyond the extended date of 30.09.2021. It is clarified that: i. where the thirty days time limit falls between 1st March, 2020 to 31st December, 2020, there is no provision available to extend the said time period of 30 days under section 30 of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by the tax payers:- These actions would continue to be governed only by the statutory mechanism and time limit provided/ extensions granted under the statute itself. Various orders of the Hon ble Supreme Court would not apply to the said proceedings/ compliances on part of the tax payers. b ) Q uasi-Judicial proceedings by tax authorities:- The tax authorities can continue to hear an dispose off proceedings where they are performing the functions as quasi-judicial authority. This may inte-ralia include disposal of application for refund, application for revocation of cancellation of registration, adjudication proceedings of demand notices, etc. Similarly, appeals which are filed and are pending, can continue to be heard and disposed off and the same will be governed by those extensions of time granted by the statues or notifications, if any. c) Appeals by taxpayers/ tax authorities against any quasi-judicial order:- Wherever any appeal is required to filed before Joint/ Additional Commissioner (Appeals), Commissioner (Appeals), Appellate Authority for Advance Ruling, Tribunal and various courts against any quasi-judicial order or wher ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... T), Salem , in W.P.Nos.20083 and 20086 of 2021, and order dated 01.10.2021, in Suresh Trading Corporation Vs. The Asst. Commissioner (Circle) of SGST, Coimbatore II , in W.P.No.21109 of 2021, granted time for filing fresh application for revocation of the cancellation of registration. 205. Though the Clarifications and Notifications have been issued in a staggered manner by rising to the occasions to facilitate the industries to come back to the GST fold, gap however still continued to haunt these petitioners under the statute. The cases of the petitioners are now beyond the clarifications and relaxation referred to supra . 206. It should be however remembered that the provisions of the Goods and Services Tax Act, 2017 cannot be interpreted in such a manner, so as to debar an assessee, either from obtaining registration or reviving the lapsed/cancelled registration as such an interpretation would be not only contrary to the Article 19(1)(g) of the Constitution of India but also in violation of Article 14 and Article 21 of the Constitution of India. 207. A reading of Notification No.52/2020 Central Tax, Central Board of Indirect Taxes and Customs, dated 24.06 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 212. May be, organised companies who comply with the requirement of GST enactments may not give business with these petitioners. However, by keeping the petitioners out of the bounds of GST law, purpose of the Act will not be achieved. It will also not mean that the petitioners will not do business ie., of either supplying goods or service in the unorganised sector. They will still do their buisness, may be surreptitiously and clandestinely. 213. They may perhaps not get opportunity to supply goods or services to established players. They may still supply to smaller players who may not be keen on GST compliance by the petitioners. 214. By not allowing the petitioners to revive their registration is to de-recognise a whole lot of entrepreneurs and to not to collect GST at all from them. 215. It will only strain the system, as these petitioners will continue to carry on their business and supply goods and service and/or end up not paying the GST under the respective GST enactments. It will lead to loss of revenue to the Government which is not intended when these enactments were enacted. 216. Since, no useful will be served by not allowing persons like the pe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as the jurisdiction of the High Court under Article 226 - or for that matter, the jurisdiction of this Court under Article 32 - is concerned, it is obvious that the provisions of the Act cannot bar and curtail these remedies. It is, however, equally obvious that while exercising the power under Article 226/Article 32, the Court would certainly take note of the legislative intent manifested in the provisions of the Act and would exercise their jurisdiction consistent with the provisions of the enactment. Even while acting in exercise of the said constitutional power, the High Court cannot ignore the law nor can it override it . 224. Notwithstanding the fact that the petitioners have shown utter disregard to the provisions of the Acts and have failed to take advantage of the amnesty scheme given to revive their registration, this Court is inclined to quash the impugned orders with grant consequential reliefs subject to terms. 225. The provisions of the GST enactments cannot be interpreted so as to deny the right to carry on Trade and Commerce to a citizen and subjects. The constitutional guarantee is unconditional and unequivocal and must be enforced regardless of the defec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ax, Interest, fine / fee and etc. shall not be allowed to be made or adjusted from and out of any Input Tax Credit which may be lying unutilized or unclaimed in the hands of these petitioners. iii. If any Input Tax Credit has remained utilized, it shall not be utilised until it is scrutinized and approved by an appropriate or a competent officer of the Department. iv. Only such approved Input Tax Credit shall be allowed for being utilized thereafter for discharging future tax liability under the Act and Rule. v. The petitioners shall also pay GST and file the returns for the period subsequent to the cancellation of the registration by declaring the correct value of supplies and payment of GST shall also be in cash. vi. If any Input Tax Credit was earned, it shall be allowed to be utilised only after scrutinising and approving by the respondents or any other competent authority. vii.The respondents may also impose such restrictions / limitation on petitioners as may be warranted to ensure that there is no undue passing of Input Tax Credit pending such exercise and to ensure that there is no violation or an attempt to do bill trading by taking advantage of th ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
