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2023 (10) TMI 412

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....llation of the registration of the petitioner. Further, a mandamus has been sought for restoration of the registration of the petitioner forthwith with effect from 18.08.2022. 4. Brief facts of the case are that Smt. Vidya Devi is the proprietor of the petitioner firm carrying the business of purchase and sale of coal on retail basis for which the GSTIN was granted. Since the petitioner's turn over was below Rs. 50 lacs, it opted for compounding scheme under Section 9(1) of U.P.G.S.T Act as provided under Section 10 of the said Act. On 24.09.2022, a show cause notice was issued by the respondent no.2 to the petitioner proposing to cancel the registration of the petitioner for the reason assigned therein with the direction of the TTZ authority and written direction by JC (SIB) B Agra for cancellation of registration of all coal depot. The petitioner submitted the reply through registered post on 3.10.2022 in response to the notice dated 24.09.2022. Being dissatisfied with the reply of the petitioner, the registration of the petitioner was cancelled vide impugned order dated 14.10.2022 with effect from 18.8.2022. Feeling aggrieved by the aforesaid order, the petitioner preferred....

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....assed in Writ Tax No.738 of 2011 (M/S Agra Coal Suppliers Vs. State of U.P., Thru' Principal Secry., Instt. Finance & Anr.), decided on 24.05.2011. 7. He further submitted that the GST Act is a complete Code in itself and the cancellation of registration, if any, has to fulfil the test of requirement mentioned in Section 29 of the UPGST Act read with Rule 21 of the Rules framed therein. In absence of any violation of provision in the said Section or Rule, the registration cannot be cancelled. In support of his submission, he also placed reliance upon the judgment of this Court passed in the case of Drs. Wood Products Lucknow Vs. State of U.P., 2022 NTN (Vol.80)-309. 8. He further submitted that even assuming without admitting that under the Environment (Protection) Act, 1986, the power has been exercised under Section 5 directing for cancellation of registration of the coal depot in Agra, the same cannot be passed as the said provision only applies to industry or any person involve or such operation, but the petitioner is only the coal dealer carrying on business of purchasing and selling, which do not pollute the environment. Therefore, it will not be covered by the said dir....

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.... coal depot dealers of the area, which is beyond the direction. The authorities have misinterpreted the said direction. 12. He further submitted that for the first time along with counter affidavit an appendix has been annexed along with cancellation order Annexure- CA-24 at page no.243. He further submitted that the said appendix was neither there on the record nor any mention in the cancellation order nor before the first appellate authority nor any order communicating the said fact was ever been made to the petitioner. 13. Per contra, learned ACSC supports the impugned order and submits that the petitioner is not entitled for any relief from the Court as the petitioner did not adhere to the directions issued from time to time under the Environment (Protection) Act as well as TTZ authorities constituted in pursuance of the N.C. Mehta case (supra). He further submitted that the petitioner was required to maintain the sale register of coal in detail as well as to acquire the no objection certificate from the Pollution Control Board and other authorities, but till date the same has not been uploaded. He further submitted that after following the due process under UPGST Act as well....

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....nt. 18. Further, Section 24 of the Environment (Protection) Act, 1986 reads as under:- "24. Effect of other laws;- (I) Subject to the provisions of sub-section (2), the provisions of this Act and the rules or orders made therein shall have effect notwithstanding anything inconsistent therewith contained in any enactment other than this Act. (2) Where any act or omission constitutes an offence punishable under this Act and also under any other Act then the offender found guilty of such offence shall be liable to be punished under the other Act and not under this Act" 19. From bare perusal of the aforesaid Section, it is evidently clear that if an offence is punishable under this act and the offender is also found guilty of said offence, offender shall be liable to punish under other act and not under Environment (Protection), 1986 Act. 20. In other word, if any other enactment is in operation, then environment act has overriding effect, but for punishing and such punishment will be under that Act. Any direction given by the TTZ Authorities for cancellation of registration has to be in accordance with Section 29 read with rule 21 of GST Act and Rules therein. The GST authoriti....

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....and is hereby quashed and set aside. In the light of that, the writ petition is allowed in terms of prayer clauses (i) and (ii), which read as under:- "(i) that a suitable writ, order or direction in the nature of certiorari be issued calling for the record and quashing the impugned order dated 01.12.2010 (Anneuxre-8 to this petition). (ii) that a suitable writ, order or direction in the nature of mandamus or prohibition be issued restraining/prohibiting the respondents from taking any action against the petitioner in view of the impugned order." Accordingly, the writ petition as well as stay application is disposed of." 23. On perusal of the record, it further shows that 56 meetings have been held, a copy of which has been annexed as Annexure-7. The meeting dated 11.5.2022, the Agenda-3; direction (iii) refers with regard to coal dealer and the directions therein at page 131 to the counter affidavit, which is quoted below:- 24. On perusal of the said direction, It only refers with regard to 26 coal dealers, the direction was for tax authorities for passing an appropriate order against 26 coal dealers only and not for all coal dealers of Agra. 25. The Court is constraine....

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.... VAT Act was not followed. Reasonable opportunity of being heard was not given. Proper inquiry was not made and therefore, the exparte assessment order cannot be sustained." 28. Admittedly, no order of cancellation was passed on the date fixed for 29.4.2022, but thereafter on 14.10.2022 for which neither any notice nor any communication was made to the petitioner. Further, in the cancellation of registration order, it has wrongly been mentioned that no reply was submitted by the petitioner, but the next mentions the reply date. In view of the law laid down by the Division Bench of this Court passed in Agra Coal Suppliers (supra) impugned order cannot sustain. 29. The record further reveals that along with the cancellation order, an appendix order has been filed in the counter affidavit to which learned Senior Counsel has argued that the appendix along with the cancellation order has been brought on record for the first time. 30. On the pointed query put to learned A.C.S.C as to whether the appendix annexed as Annexure-24 to the registration certificate was ever been brought on record before the first appellate authority or the same was communicated to the petitioner, he could no....

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....erusal of the show-cause notice at the first instance, clearly depicts the opaqueness of the allegations levelled against the petitioner, which were only to the ground that ''tax payer found non-functioning/non-existing at the principal place of business'. The said show-cause notice did not propose to rely upon any report or any inquiry conducted to form the opinion and on what basis was the allegation levelled that the tax payer was found non-functioning; it does not indicate as to when the inspection was carried. A vague show-cause notice without any allegation or proposed evidence against the petitioner, clearly is violative of principles of administrative justice. Cancellation of registration is a serious consequence affecting the fundamental rights of carrying business and in a casual manner in which the show-cause notice has been issued clearly demonstrates the need for the State to give the quasi-adjudicatory function to persons who have judicially trained mind, which on the face of it absent in the present case. The order of cancellation of the registration on the ground that no reply was given is equally lacking in terms of a quasi-judicial fervor as the same d....