TMI Blog2022 (6) TMI 273X X X X Extracts X X X X X X X X Extracts X X X X ..... reliefs to these petitioners to restore their registration. Following the earlier decision, relief granted the assessee. The petitioners are directed to file their returns for the period prior to the cancellation of registration, if such returns have not been already filed, together with tax defaulted which has not been paid prior to cancellation along with interest for such belated payment of tax and fine and fee fixed for belated filing of returns for the defaulted period under the provisions of the Act, within a period of forty five (45) days from the date of receipt of a copy of this order, if it has not been already paid. On payment of tax, penalty and uploading of returns, the registration shall stand revived forthwith. Writ petition disposed off. - W.P.No.1267 of 2022 - - - Dated:- 1-2-2022 - Hon'ble Mr.Justice C.Saravanan For the Petitioner : Mr.V.Meenakshi Sundaram For the Respondent : Mr.V.Prashanth Kiran Government Advocate ORDER Mr.V.Prashanth Kiran, learned Government Advocate takes notice on behalf of the respondent. 2. The petitioner has challenged the impugned order dated 13.12.2021 passed by the respondent dismissing the a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bed 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 power under the respective enactments, quasi judicial officers were bound by the provisions of the Act and the limitation under it, they have acted in accordane with law. They cannot look beyond the limitations prescribed under provisions of the Act. Therefore, no fault can be attributed to their action. 157. Under these circumstances, no fault can be attributed to the impugned orders passed by the Appellate Commissioner inasmuch as they cannot exercise jurisdiction beyond the provisions of the Act and are bound to Act in a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cise 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 division. vi. For taxpayers registered under both VAT and Service Tax, the total non-overlapping turnover (total of VAT and Service Tax, excluding any turnover which is included in both) shall be calculated and used as the basis for division. The Service Tax turnover shall be on the basis of clauses (iv) and (v) as the case may be. 3. The State Level Committees Commercial Taxes of respective comprising Chief Commissioner/Commissioner States and jurisdictional Central Tax Chief Commissioners/Commissioners are already in place for effective coordina ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... upply 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 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 subsections (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 trans ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e 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 territory, then such establishments shall be treated as establishments of distinct persons for the purposes of this Act. (6) Every person shall have a Permanent Account Number issued under the Income Tax Act, 1961 in order to be eligible for grant of registration: Provided that a person required to deduct tax under section 51 may have, in lieu of a Permanent Account Number, a Tax Deduction and Collection Account Number issued under the said Act in order to be eligible for grant of registration. (7) Notwithstan ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 the taxable person, other than the person registered under subsection (3) of section 25, is no longer liable to be registered under section 22 or section 24. (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 registered person has contravened such provisions of the Act or the rules made thereunder as may be prescribed; or a person paying tax under section 10 has not furnished returns for three consecutive t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 reply to the show cause notice issued under sub-rule (1) shall be furnished in FORM REG 18 within the period specified in the said sub-rule. (3) Where a person who has submitted an application for cancellation 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 subsection (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 in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 application within thirty (30) days for revocation of cancellation order under Section 30(1). However, right from the beginning, GST Council recognised that the GST law was new and assessees encountered the difficulties in switching to procedural compliance electronically through Internet on the GST Web-Portal. 174. Considering the hardship faced by the assesses, the GST Council in its 33rd Meeting held on 24.02.2019 took a decision. Pursuant to aforesaid decision, the Central Government, on recommendations of the GST Council, in exercise of power conferred under Section 172 of the Central Goods and Services Tax Act, 2017, inserted a proviso to Section ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ard. (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. (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 reply to the show cause notice issued under sub-rule (1) shall be furnished in FORM REG 18 within the period specified in the said sub-rule. (3) Where a person who has submitted an application for cancellation 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 t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ating 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, 21237, 26190, 26187 14508 of 2021 who opted to file appeals, were beyond the period for condoning the limitation under Section 107 of the Act. They were rightly rejected at the preliminary stage for appeals filed beyond the period of limitation cannot be entertained in view of the decision of the Hon'ble Supreme Court in M/s.Singh Enterprises Vs. Commissioner of Central Excise, Jamshedpur and Others, (2008) 3 SCC 70 182. Similarly, the appeals of the petitioners in W.P.Nos.25048, 17237, 25877, 25118, 24967, 12683, 12685 26026 of 2021 and in W.P.Nos.507, 126 128 of 2022 were also rightly rejected after they were numbered. Their appeals were also rightly rejected correctly as such appeals were filed beyond the period for condonation of the delay a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e 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 others to revive their registration. 188. 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. 189. Thus, all these petitioners whose registration had been cancelled prior to 12.06.2020 were given a fresh opportunity to file an application for revocation of cancellation of registration in terms of the Central Goods and Services Tax (Removal of Difficulties) Order, 2020 vide Order No.01/2020-Central Tax , Central Board of Indirect Taxes and Customs, dated 25.06.2020 . However, none of the petitioners opted to exercise the privilege. 190. Mirroring the above Notification, G.O. (Ms). No.102, Commercial Taxes and Registra ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rom 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: 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 regist ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 (Department of Revenue) Central Board of Indirect Taxes and Customs Notification No. 34/2021 Central Tax New Delhi, the 29th August, 2021 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 1st May, 2021, published in the Gazette of India, Extraordinary, Part II, Section 3, Sub-section (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, 2 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 appellate authority or which have been rejected by the appellate authority. In other words, the date for filing application for revocation of cancellation of registration in all cases, where registration has been cancelled under clause (b) or clause (c) of Sub-section (2) of Section 29 of 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, is extended to 30th September, 2021, irrespective of the status of such applications. As explained in this para, the said notification would be applicable in the following manner: i. application for revocation of cancellation of registration has not been filed by the taxpayer- In such cases, the applications for revocation can be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ions 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 the CGST Act. For such cases, pursuant to the said notification, the time limit to apply for revocation of cancellation of registration stands extended up to 30th September, 2021 only; and ii. where the time period of thirty days since cancellation of registration has not lapsed as on 1st January, 2021 or where the registration has been cancelled on or after 1st January, 2021, the time limit for applying for revocation of cancellation of registration shall stand extended as follows: (a) Where the time period of 90 days (initial 30 days and extension of 30 + 30 days) since cancellation of registration has elapsed by 31.08.2021, the time limit to apply for revocation of cancellation of registration stands extended upto 30th September 2021, wit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e 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 where a proceeding for revision or rectification of any order is required to be undertaken, the time line for the same would stand extended as per the Hon ble Supreme Court s order. 202. Meanwhile, the Hon ble Supreme Court taking note of the hardship faced by the litigants had also extended the limitation by its orders dated 23.03.2020, 08.04.2021, 27.04.2021 23.09.2021 in Recognizance of Extension of Limitation Vs. xxxx, in Miscellaneous Application No.665/2021 in SMW(C) No.3/2020. 203. In its order dated 23.09.2021 in the above case, 2021 SCC OnLine SC 947, the Hon ble Supreme Court held as under:- Therefore, we dispose of the M.A. No. 665 of 2021 with the following directions:- I. In computing the period of limitation for any suit, appeal, application or proceeding, the period from 15. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gistration 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 24.06.2020 , further indicates that returns could be filed belatedly on payment of late fee and waivers were also granted. Relevant portion of the said Notification reads as under:- (ii) after the third proviso, the following provisos shall be inserted, namely: Provided also that the total amount of late fee payable for a tax period, under section 47 of the said Act shall stand waived which is in excess of an amount of two hundred and fifty rupees for the registered person who failed to furnish the return in FORM GSTR- 3B for the months of July, 2017 to January, 2020 , by the due date but furnishes the said return between the period from 01st day of July, 2020 to 30th day of September, 2020: Provided also that where the total amount of central tax payable in the said return is nil, the total amount of l ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 petitioners to revive their registration and integrate them back into the main stream, I am of the view that the impugned orders are liable to be quashed and with few safeguards. 217. There are adequate safeguards under the GST enactments which can also be pressed against these petitioners even if their registration are revived so that, there is no abuse by these petitioners and there is enough deterrence against default in either paying tax or in complying with the procedures of filing returns. 218. Further, the Government requires tax to meet its expenditure. By not bringing these petitioners within the GST fold, unintended privilege may be conferred on these petitioners unfairly to not to pay GST should they end supplying goods and/or services without registration. For example, a person renting out an immovable ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is 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 defect in the scheme of the GST enactments. The right to carry on trade or professoin also cannot be curtailed. Only reasonable restriction can be imposed. To deny such rights would militate against their rights under Article 14, read with Article 19 (1)(g) and Article 21 of the Constitution of India. 226. As original or as appellate authority exercising power under the respective enactments, quasi judicial officers were bound by the provisions of the Act and the limitation under it, they have acted in accordance with law. They cannot look beyond the limitations prescribed under provisions of the Act. Therefore, no fault can be attributed to their action. 227. This is a fit case for exercising the power under Article 226 of the Constitution of India in favour of the petitioners by quashing the impugned orders and to grant con ..... X X X X Extracts X X X X X X X X Extracts X X X X
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