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TMI Blog2025 (3) TMI 670X X X X Extracts X X X X X X X X Extracts X X X X ..... ) No. 2244/2024; Ms. N. Hawelia, the learned counsel appearing on behalf of the petitioner in WP(C) No. 2695/2024; Mr. R. S. Mishra, the learned counsel appearing on behalf of the petitioners in WP(C) No.3683/2024 and Mr. A. Khanikar, the learned counsel appearing on behalf of the petitioner in WP(C) No. 4500/2024. I have also heard Mr. S. C. Keyal, the learned Standing counsel appearing on behalf of the CGST and Mr. B. Gogoi, the learned Standing counsel appearing on behalf of the Finance and Taxation Department of the Government of Assam. 2. The issues involved in the batch of 4 (four) writ petitions primarily related to the cancellation of the registrations under Central Goods and Service Tax Act, 2017 and State Goods and Service Tax Act, 2017. The question which arises for consideration before this Court is as to whether this Court should interfere with the cancellation of the registrations or in other words, revoke the cancellation of the registrations in the respective facts of the cases before this Court. Under such circumstances, it is relevant to narrate the relevant facts which led to the filing of the instant batch of writ petitions before this Court. WP(C) No. 2244/20 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... till November, 2019. Be that as it may, as the period seeking revocation under Section 30 of the Assam Goods and Service Tax Act, 2017 (for short 'the State Act') had expired, the petitioner preferred an Appeal under Section 107 of the State Act read with Rule 108 (3) of the Assam Goods and Service Tax Rules, 2017 (hereinafter referred to as the 'State Rules'). The said Appeal upon being filed was registered and numbered as FORM GST APL-01 on 12.03.2024. The said appeal was rejected by the Appellate Authority i.e. the Joint Commissioner of State Taxes Appeals vide an order dated 06.04.2024 on the ground of delay and it is under such circumstances, the petitioner had approached this Court by filing the present petition. 7. It is seen that this Court issued notice on 29.04.2024. It is irrelevant to take note of that on 11.09.2024, an affidavit-in-opposition was filed by the Commissioner of Taxes, Assam through the Joint Commissioner of Taxes, Assam. In the said affidavit-in-opposition, it was mentioned that the order against which the appeal was preferred was passed on 18.11.2019 and the appeal having been filed after four years on 12.03.2024, the Appellate Authority could not have ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he petitioner further avers in the writ petition that till the date of filing of the writ petition, the petitioner was not in a position to download the said show cause notice. A screenshot of the downloaded portal showing the issuance of a show cause notice dated 29.06.2021 is enclosed as Annexure-III. Thereupon, on 17.07.2021, the Proper Officer issued an order thereby cancelling the GST Registration of the petitioner. It is the case of the petitioner that from a perusal of the said order dated 17.07.2021, it would be seen that there was no due payable by the petitioner. 10. The order of cancellation was enclosed as Annexure-IV to the writ petition. A perusal of the order dated 17.07.2021 would show that a contradictory stand was taken. On one hand it has been mentioned that there is a reply submitted by the petitioner on 08.07.2021 and on the other hand, it has been mentioned that there is no reply submitted to the show cause notice dated 29.06.2021. No other reasons assigned as regards cancellation. 11. The petitioner thereupon filed an appeal by engaging a different consultant taking into account that the earlier consultant did not take any steps. The Appeal was registered a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ther than composition taxpayer has not filed returns for a continuous period of six months". The petitioner No. 1 was asked to submit its reply within 30 days from the date of service of the said notice and further, a date of hearing was fixed on 22.03.2021 at 11 AM. 15. Similar to the earlier two writ petition being WP(C) No. 2244/2024 and WP(C) No. 2695/2024, an order was passed on 23.03.2021 by the Proper Officer wherein contradictory aspects were mentioned to the effect that the petitioner No. 1 had submitted a reply on 23.03.2021 as well as the petitioner No. 1 had not submitted any reply to the show cause notice. There is no reasons assigned in the order for cancellation of the registration. Be it as it may, it is the case of the petitioners that at that relevant time, as COVID-19 pandemic restrictions were going on, the office of the petitioners was closed and the petitioner No. 2 could not visit the GST portal. It is the further case of the petitioners that the petitioners post the COVID-19 pandemic, arranged funds and filed their returns up to March, 2021 as allowed by the GST portal. 16. It is also the case of the petitioners that while updating the returns, the petitio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t was further stated by the petitioners in the affidavit-in-reply that as the GST Registration Number of the Petitioner No. 1 is already available with the existing vendors and the parties with whom the Petitioner No. 1 had earlier conducted business transactions and also intended to conduct future business transactions after the revival of the GST registration, it would cause great inconvenience if the GST registration is not revived. It was further stated that it would not prejudice the Government rather, if the cancellation of the GST registration is revoked, the petitioners would have to file their return from April, 2021 to till date for which the State Exchequer would be getting the revenue as well as the late fees. WP(C) No. 4500/2024: 19. The petitioner herein is in the business of execution of maintenance work contract with the Oil India, Duliajan and in that regard, his firm in the name and style of "Moni Kanta Das" was registered under the Central Act bearing Registration No. 18ADPFS9101C1Z0 and the registration certificate was issued on 18.05.2018. It is the further case of the petitioner that the petitioner continued to file his returns in due time. However, on 05.01 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Central Act which are pari materia to the State Act as well as the Rules framed therein under. 25. Chapter-VI of the Central Act specifically deals with Registration. Section 22 and 24 of the Central Act stipulates the categories of persons who are liable to be registered. Section 23 refers to those category of persons who are not liable to be registered. Section 25 stipulates the procedure for registration. 26. It is relevant to take note of that Sub-Section (1) to Sub-Section (7) of Section 25 of the Central Act which deals specifically with the procedure as to when a person is liable to be registered under Section 22 or 24 applies for registration. However, Sub-Section (8) of Section 25 is very relevant inasmuch as, if a person who is liable to be registered under Section 22 and 24 fails to obtain registration, the Proper Officer may, without prejudice to any action which may be taken under the Act or under any other law for the time being in force, proceed to register such person in such manner as may be prescribed. 27. The prescription is in Rule 16 of the Central Goods and Service Tax Rules, 2017 (for short 'the Central Rules'). This aspect is important, taking into acco ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ded that the proper officer shall not cancel the registration without giving the person an opportunity of being heard. [Provided further that during pendency of the proceedings relating to cancellation of registration, the proper officer may suspend the registration for such period and in such manner as may be prescribed]" 31. It would be seen from the above quoted Sub-Section that a Proper Officer may cancel the registration of a person from such date including any retrospective date as he may deem fit when any of the conditions stipulated in Sub-Clauses (a) to (e) are satisfied. However, to exercise the said power, the Proper Officer is required to give an opportunity of hearing to the person. 32. At this stage, it is further relevant to take note of that the Proper Officer in order to cancel the registration has to take note of the procedure as stipulated in Rule 22 which stipulates that the Proper Officer 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 service of such notice as to why his registration should not be cancelled. This Court duly takes note of the FORM GST REG-7 which is a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to the person. Sub-Section (3) of Section 29 further stipulates that till the date of cancellation of the registration, the person in whose favour the registration was, has to pay tax and other dues under the Act or to discharge any obligations under the Act or the Rules made thereunder. It would also transpire from a reading of Rule 22 of the Central Rules that not only show cause notice is required to be issued in the format as stipulated in FORM GST REG-17 but also a date of hearing is required to be fixed. Therefore, it would be seen that the opportunity which is to be granted has to be an opportunity in real sense and not a mere formality. Further to that, it is a well settled principle of law that when a show cause notice is issued, the show cause notice has to specify clearly and without any ambiguity the reasons as to why the show cause notice have been issued in terms with FORM GST REG-17. It is trite that if the said show cause notice is vague, the very initiation of the proceedings on the basis of the said show cause notice would become redundant. More so, when a combine reading of the aforementioned provisions clearly stipulate that the person has to be given an opport ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... turns: Provided also 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:" 40. The above quoted two provisos shows that a person can only file an application seeking revocation if that person has furnished the returns and paid any amount due as tax in terms of the returns, along with amount payable towards interest and penalty and late fee in respect to the said returns. In other words, the provision of revocation of cancellation of a registration is only available when the person concerned submits his returns and also pays the amount due as tax, interest, penalty and late fee in respect to the such returns. The third proviso to Rule 23 (1) is also relevant inasmuch as it provides that all returns due for the period from the date of 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 30 days from the date of order o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he returns have not been filed. It appears from a perusal of the show cause notices enclosed to the writ petitions except WP(C) No. 2695/2024 that the Proper Officer mechanically issued the said show cause notice. 45. In the case of WP(C) No. 2695/2024, the petitioner has specifically averred that the petitioner could not access to the show cause notice and the respondents have also not brought on record the said show cause notice. Under such circumstances, this Court is of the opinion that the show cause notices were vague. In that view of the matter, as the show cause notices were vague, the orders by which the registrations were cancelled cannot be sustained in law. 46. This Court has also perused the orders of cancellation impugned in the present proceedings. It is also relevant to take note of that admittedly the petitioners have not submitted any reply but most surprisingly the Proper Officer referred in the impugned orders of cancellation of the registration about replies being filed. In fact, the Proper Officer appears to have been confused whether any reply has been filed or not. It appears that the Proper Officer most mechanically passed the orders of cancellation even ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that the Proper Officer can issue the order under Section 73 (9) of the Central Act/State Act within 3 years from the due date for furnishing the annual returns. It is also apposite to mention that in terms with Section 73 (2) of the Central Act/State Act, the Proper Officer has to issue notice three months prior to the time limit specified in Section 73 (10) of the Central Act/State Act. Therefore, it is the opinion of this Court that in order to balance the equities, it is required that the date of furnishing the annual return be appropriately extended. In that view of the matter, this Court declares that in respect to the Petitioners in the present batch of writ petitions, the period for submission of the annual returns would be the date of the instant judgment except for the period 2024-2025 which would be in terms with Section 44 of the Central Act/State Act. 50. In that view of the matter, the instant batch of writ petitions are disposed off with the following observations and directions: (i) The order of cancellation of registration dated 18.11.2019 challenged in WP(C) No. 2244/2024 is set aside and quashed. The petitioner herein is directed to file the returns for the pe ..... X X X X Extracts X X X X X X X X Extracts X X X X
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