TMI Blog2022 (7) TMI 128X X X X Extracts X X X X X X X X Extracts X X X X ..... insofar as, that it does not provide an unlimited jurisdiction on the First Appellate Authority to extend the limitation beyond one month after the expiry of the prescribed limitation. In such case, the petitioner/appellant is put to hardship and is left without remedy. In such cases, the party concerned may face starvation because of denial of livelihood for want of GST Registration. In this case, the petitioner/appellant is a semi-skilled labourer working as a painter doing painting on doors, windows of the houses - if the petitioner is denied a GST registration number, it affects his chances of getting employment or executing works. Such denial of registration of GST number, therefore, affects his right to livelihood. If he is denied his right to livelihood because of the fact that his GST Registration number has been cancelled, and that he has no remedy to appeal, then it shall be violative of Article 21 of the Constitution as right to livelihood springs from the right to life as enshrined in Article 21 of the Constitution of India. In this case, if we allow the situation so prevailing to continue, then it will amount to violation of Article 21 of the Constitution, and right to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... therefore, the same requires to be set aside. However, we are also aware of the fact that the learned Single Judge has not given any findings about the merits on the claim of the petitioner/appellant so far as the cancellation of his GST Registration number is concerned. Hence, the matter has to be remanded. Appeal allowed. - SPECIAL APPEAL NO. 123 OF 2022 - - - Dated:- 20-6-2022 - ACTING CHIEF JUSTICE SHRI SANJAYA KUMAR MISHRA AND JUSTICE SHRI RAMESH CHANDRA KHULBE Counsel for the appellant : Mr. S.K. Posti, learned Senior Counsel assisted by Mr. Ashutosh Posti, learned counsel Counsel for the respondent : Mr. Tarun Lakhera, learned Brief Holder for the State of Uttarakhand JUDGMENT: (Per the Acting Chief Justice Shri Sanjaya Kumar Mishra) In this intra-court appeal, the appellant, being a mason / painting professional, having GST Registration in the State of Uttarakhand has assailed the order passed by the learned Single Judge in Writ Petition (M/S) No. 1553 of 2021, on dated 30.09.2021, on the ground that the writ petition is not maintainable in view of the fact that there is an alternative and efficacious remedy available to the petitioner/appellant ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iate (India) Pvt. Ltd. Vs Union of India and others, 2016 0 AIR(Guj) 97, where the case was referred to the larger Bench for determining three questions. The third question is important for this case, which is quoted below: (3) When if the statutory remedy or appeal under Section 35 is barred by the law of limitation whether in a Writ Petition under Article 226 of the Constitution of India, the order passed by the original adjudicating authority could be challenged on merit? 6) The answer was given by the Hon ble Full Bench of the Gujarat High Court in paragraph 31 of the said judgment, especially, in sub-paragraph (3). The Full Bench of the Hon ble Gujarat High Court held that on the third question the answer is in affirmative, but with the clarification that A) The petition under Article 226 of the Constitution can be preferred for challenging the order passed by the original adjudicating authority in following circumstances that : A.1) The authority has passed the order without jurisdiction and by assuming jurisdiction which there exist none A.2) Has acted in flagrant disregard to law or rules or procedure or acted in violation of principles of natural ju ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... olation of Article 21 of the Constitution, and right to life of a citizen of this country. 9) In that view of the matter, we are of the opinion that the writ petition is maintainable, and the learned Single Judge should have acted upon his judicial conscience enriched by judicial experience and practical wisdom, and held that the writ petition should be entertained. 10) Viewing from another angle, it is seen that Section 107 of the Uttarakhand Act provides for an appeal. Section 107 of the Uttarakhand Goods and Services Tax Act, 2017, is extracted hereunder: 107. Appeals to Appellate Authority.-(1) Any person aggrieved by any decision or order passed under this Act or the Central 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. (2) The Commissioner may, on his own motion, or upon request from the Commissioner of Central tax, call for and examine the record of any proceedings in which an adjudicating authority has passed any decision or order under this Act or the Central Goods and Services Tax Ac ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... es to a party during hearing of the appeal. (10) The Appellate Authority may, at the time of hearing of an appeal, allow an appellant to add any ground of appeal not specified in the grounds of appeal, if it is satisfied that the omission of that ground from the grounds of appeal was not wilful or unreasonable. (11) The Appellate Authority shall, after making such further inquiry as may be necessary, pass such order, as it thinks just and proper, confirming, modifying or annulling the decision or order appealed against but shall not refer the case back to the adjudicating authority that passed the said decision or order: Provided that an order enhancing any fee or penalty or fine in lieu of confiscation or confiscating goods of greater value or reducing the amount of refund or input tax credit shall not be passed unless the appellant has been given a reasonable opportunity of showing cause against the proposed order: Provided further that where the Appellate Authority is of the opinion that any tax has not been paid or short-paid or erroneously refunded, or where input tax credit has been wrongly availed or utilised, no order requiring the appellant to pay such ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o as the H.P. Act ) as well as Section 2(4) of the H.P. Act, which defines adjudicating authority, and gave a finding. It is appropriate to take note of the fact that Sub-Section (1) of Section 107 of the H.P. Act, which is almost pari materia with the Sub-Section (1) of the Section 107 of the Uttarakhand Act, which provides a forum for appeal against an order passed by an adjudicating authority. Section 2(4) of the H.P. Act provides that adjudicating authority means any authority, appointed or authorised to pass any order or decision under this Act, but does not include the Commissioner, Revisional Authority, the Authority for Advance Ruling, the Appellate Authority for Advance Ruling, the Appellate Authority and the Appellate Tribunal. 12) Section 2(4) of the Uttarakhand Act defines adjudicating authority to mean any authority, appointed or authorised to pass any order or decision under this Act, but does not include the Commissioner, Revisional Authority etc. The provisions of the Uttarakhand Act is pari materia with the definition of adjudicating authority provided in the H.P. Act. At paragraph 66 of the said judgment, the Hon ble Supreme Court held that from the abov ..... X X X X Extracts X X X X X X X X Extracts X X X X
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