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TMI Blog2024 (10) TMI 1296X X X X Extracts X X X X X X X X Extracts X X X X ..... learned counsel for the petitioner that as the Appellate Tribunal has not yet been constituted in the State of Uttarakhand as provided under Section 109 of GST Act, hence the writ petition is maintainable. The learned Single Judge directed the State counsel to get instructions in the matter as to whether the Appellate Tribunal has been constituted in the State of Uttarakhand or not. On the date fixed, it was informed to the Court that no Appellate Tribunal has yet been constituted as per Section 109 of the Act. Subsequently, the aforesaid writ petition was dismissed by the learned Single Judge on 30.09.2021. 3. Aggrieved against the judgment dated 30.09.2021, the instant Special Appeal was preferred, which was allowed on 20.06.2022 by holding that the writ petition is maintainable and simultaneously, by allowing the Appeal the matter was remanded back to the learned Single Judge for consideration on merits. 4. The learned counsel for the parities informed to this Court that thereafter, the learned Single Judge disposed of the writ petition by judgment and order dated 18.08.2022 with the direction that "in an event if the petitioner deposits the entire defaulted amount, including ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 10. Proper Officer is defined under Section 2(91) of the Act which reads as under:- 2(91). "proper officer" in relation to any function to be performed under this Act, means the Commissioner or the officer of the State tax who is assigned that function by the Commissioner; 11. Section 29 of the Act pertains to cancellation (or suspension) of registration and sub Section (1) of the said Section stipulates that the "proper officer" shall cancel the registration. Section 29(1) of the Act is also being reproduced herein as below: 29(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, -- 12. Section 107 of the Act pertains to the Appeals to Appellate Authority and the same is also being extracted herein as under: "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 prescri ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... shall give an opportunity to the appellant of being heard. (9) The Appellate Authority may, if sufficient cause is shown at any stage of hearing of an appeal, grant time to the parties or any of them and adjourn the hearing of the appeal for reasons to be recorded in writing: Provided that no such adjournment shall be granted more than three times 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 appella ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cancellation of GST registration and falls within the definition of "adjudicating authority", as defined under Section 2(4) of the Uttarakhand Goods and Service Tax Act, 2017. 15. It is further submitted by the learned counsel for the review applicant that admittedly an Appeal is provided under Section 107(1) of the Act against any decision or order passed under the Uttarakhand Goods and Service Tax Act, 2017 by an adjudicating authority and under Section 2(4) of the Act, the Commissioner has been excluded being the adjudicating authority. 16. He further submits that since the Assistant Commissioner of State Tax has been assigned the functions of "proper officer" under the Uttarakhand Goods and Service Tax Act, 2017 by an order dated 30.06.2017, passed by the Commissioner of State Tax of Uttarakhand, Dehradun, by invoking the powers conferred under sub-Section (1) and sub-Section (3) of Section 5 read with clause (91) of Section 2 of the Uttarakhand Goods and Service Tax Act, 2017 and the Rules framed thereunder, therefore, for all purposes, the Appeal shall lie before the Appellate Authority i.e. the Commissioner of State Tax. 17. It is contended by the learned counsel for the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sh and others, (2021) 6 Supreme Court Cases 771, wherein the power to levy a provisional attachment of the bank accounts by the Commissioner of GST was questioned. Upon such challenge before the Hon'ble High Court of Himachal Pradesh, the said writ petition was dismissed. Thereafter, the matter went to the Supreme Court in a Special Leave Petition. The Hon'ble Supreme Court took into consideration the provision of Section 107 of the Himachal Pradesh Goods and Services Tax Act, 2017 (hereinafter referred to 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e, the observation of the Hon'ble Supreme Court, i.e., the Commissioner is not an adjudicating authority, hence an appeal will not lie against the orders passed by him under Section 107 of the Uttarakhand Act shall also be applicable to any orders passed by the Assistant Commissioner, be it attachment of property or cancellation of GST registration number. 21. We examine the question, as framed by this Court wherein this Court drew a conclusion that under Section 2(4) of the Act, since this provision is pari materia with the definition of adjudicating authority provided in H.P. Act and since the office of the Assistant Commissioner acts under the aegis and control of the Commissioner, and nowhere in the Uttarakhand Act, it is provided that he shall act independently to the duties assigned to him by the Commissioner and hence an Appeal will not lie even against the orders passed by the Assistant Commissioner, be it attachment of property or cancellation of GST registration. 22. It is contended by the learned counsel for the review applicant that, firstly, the order passed by the office of the Commissioner of State Tax, Dehradun on 30.06.2017, whereby the assignment of function to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f proper officer under the Uttarakhand Goods and Service Tax Act, 2017 by invoking powers conferred under sub Section (1), sub Section (3) of Section 5 read with clause (91) of Section 2 of the Uttarakhand Goods and Service Act, 2007 (Act No. 06 of 2017) and the Rules framed thereunder, which has not been challenged by the writ petitioner in the writ petition, whereby the Assistant Commissioner, who passed the order of cancellation of GST registration, is admittedly is an adjudicating authority as per Section 2(4) of the Act, which excludes the Commissioner and is also a proper officer in terms of Section 29(1) of the Act and hence the Appeal will lie against an order passed by such officer, i.e. Assistant Commissioner to the Commissioner. 28. Since after the remand order, the writ petition was disposed of by the learned Single Judge on 18.08.2022, which has not been assailed and for a limited purposes the review application has been preferred whether an Appeal will lie before the Commissioner against an order passed by the Assistant Commissioner, therefore, the Review Application is being allowed, in part. 29. Consequently, the judgment and order passed by this Court on dated 20 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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