TMI Blog2022 (9) TMI 667X X X X Extracts X X X X X X X X Extracts X X X X ..... titioner and respondent No.5 are required to settle their dispute amicably or through the intervention of Court. The petitioner or for that matter respondent No.5 shall not be entitled to registration under the Goods and Services Tax Act, 2017 (GST). Chapter-VI of the GST deals with registration. In terms of Section 22 of the GST, every supplier shall be liable to be registered under the GST Act in the State or Union Territory 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 - there is not even an iota of doubt that person running a restaurant and selling the goods and providing restaurant services would be a Supplier‟ within the meaning of term defined under Section 2(105) of GST Act and, therefore, would require registration under the Act, if aggregate turn over in a financial year exceeds rupees twenty lakh. In the instant case, till dispute between the petitioner and respondent No.5 is settled and two, either jointly apply or property is partitioned and fall in the share of the person applying, no license can be issued by the designated authority under the Act. This Court ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... petitioner is also inserted in the application form as incharge operation and person responsible for complying the conditions of the license. iii) Order dated 16th April, 2021 issued by respondent No.2, whereby GST registration issued in favour of the petitioner has been cancelled w.e.f. 16th April, 2021 and a fresh registration has been issued in favour of respondent No.5. 2. Apart from assailing the aforesaid orders [ impugned orders ], the petitioner also prays for a direction to respondent No.4 to restore his license issued under the Act as also registration under the Central Goods and Services Tax Act, 2017 [ GST ] forthwith with a further direction to respondent No.5 not to interfere or cause any sort of interference in the running of Samci Restaurant, Residency Road, Srinagar. 3. The reliefs claimed by the petitioner are predicated on the following factual foundation laid in the petition. a) In the year 1993, the petitioner and respondent No.5 jointly purchased a two storeyed tin roof building along with land measuring 1844 sq. feet situate at Kothibagh Bund, Srinagar [ the subject property ] from one Mohd. Sultan R/o Gow Kadal, Maisuma, Srinagar in terms of a s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... it is the petitioner and petitioner alone, who is sole owner exclusively running it and with which respondent No.5 has no concern or connection. f) The petitioner submits that the electricity and water charges for electricity and water connection given by the PDD and PHE departments respectively have all along been paid by the petitioner. There is reference to a license given by Department of Health and Medical Education dated 15th May, 2019 under the Act, which license was valid upto 14th May, 2021. g) The petitioner claims that despite the fact that the petitioner had been running the Samci Restaurant to the exclusion of respondent No.5, respondent No.5 in connivance with the officials of Food Safety Department succeeded in getting the petitioner‟s license, issued under the Act, transferred in his own name. This was so conveyed to the petitioner in terms of impugned communication dated 2nd December, 2020. h) The petitioner responded to the aforesaid communication and requested respondent No.4 to withdraw and cancel his order for transfer/grant of license in favour of respondent No.5. Besides the aforesaid grievance projected by the petitioner, it is also the case ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... No.5 fraudulently and secondly, there is no provision in the Act conferring power of transfer of the license issued under the Act from one person to another. ii) That the impugned order dated 15th May, 2019 was passed at the behest of respondent No.5 to the prejudice of the petitioner without affording any opportunity of being heard to the petitioner. iii) When there is overwhelming evidence that the petitioner alone is entitled to own and run Samci Restaurant, respondent No.4 could not have issued license under the Act in favour of respondent No.5. Respondent No.4 was apprised of the true legal position, yet he chose not to withdraw the license issued in favour of respondent No.5 but instead advised the petitioner to have his name also inserted in the application form as person incharge of operation and responsible for complying with the conditions of license. The entire action of respondent No.4 is, thus, illegal, arbitrary and without any sanction of law. iv) Order dated 16th April, 2021 is also not sustainable in law, for, the same is a product of misrepresentation and fraud played by respondent No.5 in connivance with authorities. Respondent No.5, after logging in his ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... No.5 who was entrusted the running of business of Samci Restaurant and, therefore, he applied to all the competent authorities for issuance of requisite license/registration. The license under the Act and the registration under GST Act already stand issued in favour of respondent No.5 and, therefore, he alone is competent to run the restaurant. Respondent No.5 has also placed on record certain documents to substantiate his plea that the subject property is jointly owned and possessed by the petitioner and respondent No.5 and that the Samci Restaurant is exclusively run and maintained by respondent No.5, in whose name license under the Act and the requisite registration under GST Act stand issued. 6) Both, the petitioner and respondent No.5, have also moved applications to place certain documents on record to fortify their respective stands. 7) The official stand is taken by respondent Nos. 1 and 4 i.e. the authorities under the Act. In the reply affidavit filed by respondent No.4, it is submitted that a license under the Act was issued to Samci Restaurant on 15th May, 2019 on the basis of an online application alongwith requisite documents including valid proof of possession ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ut the same has not been renewed as dispute between the petitioner and respondent No.5 has yet not been settled by them. It is, thus, the stand of respondent No.4 that, though, in the year 2019, respondent No.4 had issued license under the Act in favour of respondent No.5 for a period of two years but the same has not been renewed after its expiry in view of the dispute between the two brothers i.e. respondent No.5 and the petitioner. It is also the stand of respondent No.4 that license under the Act was issued to the premises of Samci Restaurant and the name of respondent No.5, who had submitted application with all requisite documents, had been reflected as proprietor of the restaurant responsible to comply with the conditions of license. No transfer of license or other document had been effected by respondent No.4 in favour of respondent No.5. There is, however, no reply by respondents No. 2 and 3. 9) Heard learned counsel for the parties and perused the material on record. 10) With a view to regulate manufacture, storage, distribution, sale and import of articles of food and to ensure availability of safe and wholesome food for human consumption and for matters connected ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... manufactured, stored, sold or exhibited for sale at different premises situated in more than one area, separate applications shall be made and separate licence shall be issued in respect of such premises not falling within the same area. (8) An appeal against the order of rejection for the grant of licence shall lie to the Commissioner of Food Safety. (9) A licence unless suspended or cancelled earlier shall be in force for such period as may be specified by regulations: Provided that if an application for a renewal of licence is made before the expiry of the period of validity of the licence, the licence shall continue to be in force until orders are passed on the application. (10) The licence shall subsist for the benefit of the deceased's personal representative or any other member of his family, until the expiry of- (a) the period of three months beginning with his death; or (b) such longer period as the Designated Officer may allow. 11) To supplement the provisions of Section 31 is Chapter-II of The Food Safety and Standards (Licensing and Registration of Food Businesses) Regulations, 2011 [ the Regulations ], which lays down elaborate procedure for lic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Period of validity License fee paid Items of Food products with capabilities authorized to Manufacture/Re-pack/Re-label Installed/handling capacity Signature of Designated Officer 14) From a conjoint reading of Section 31, Regulations 2.1.2 to 2.1.4 and the license format (Form-C), it is beyond any pale of doubt that a license to be issued under Chapter-II in relation to food business is granted to a person in respect of premises. The premises, which is licensed under the Act, is known as Authorized Premises‟ where a person is entitled to manufacture, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ablished. It cannot be thus disputed that unless both of them apply to the licensing authority for grant of license under the Act, it would not be possible for the designated officer to grant license for running the food business in the premises in favour of one and to the exclusion of the other. It may be true that prior to the year 2019, the Samci Restaurant, as is otherwise evident from the documents placed on record, was being run by the petitioner. Although, the property housing the Samci Restaurant was jointly owned by the petitioner and respondent No.5, yet in view of the cordial relations between two brothers, the petitioner, who was conducting the business had submitted applications to different authorities for seeking permissions and licenses required under law to carry on the food business in the premises. It appears that in the year 2019, somehow the reins of the Samci Restaurant came in the hands of respondent No.5. While he was on the driver‟s seat for running the restaurant, he appears to have approached various authorities including the designated officer under the Act for issuance of license for carrying on the food business in the name of Samci Restaurant. S ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... authority under the Act for grant of license and registration etc. The licensing authority would not be in a position to grant license under the Act with respect to the premises, ownership and possession whereof is claimed by the petitioner as well as respondent No.5 nor it would be possible for the licensing authority to name any of them to be the Food Business Operator i.e. the person responsible to carry on the food business and comply with the terms and conditions of the license. The decision of the designated authority under the Act not to renew the license in favour of respondent No.5 is, thus, completely in consonance with law. The petitioner and respondent No.5 are required to settle their dispute amicably or through the intervention of Court. Partition between two brothers appears to be a viable solution of the problem which the petitioner and respondent No.5 are facing in respect of running the business of Samci Restaurant. 22) Similarly, on the analogy of what is stated above, the petitioner or for that matter respondent No.5 shall not be entitled to registration under the Goods and Services Tax Act, 2017 (GST). Chapter-VI of the GST deals with registration. In terms ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ettle their dispute either amicably or through intervention of Court. 26) In the view I have taken, there is hardly any need to advert to the case law cited on both sides. This Court has neither entered in the arena of adjudication of complicated disputed questions of fact nor has it relegated the parties to the remedy of appeal before the authority under the Act and GST Act respectively in view of peculiar facts and circumstances of the case. 27) In view of the aforesaid analysis and in the given facts and circumstances of the case, this writ petition is disposed of by holding that so long as the premises to be licensed under the Act remains under dispute between the petitioner and respondent No.5, the designated authority under the Act is well within its power not to grant or renew the license under the Act in favour of one and to the exclusion of other. The parties need to settle their dispute either amicably or through intervention of the Court. The petitioner as well as respondent No.5 may, however, apply for grant of license jointly and in case they fulfill the requirements of the Act and the Regulations framed thereunder, they shall be granted the requisite license by ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
