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TMI Blog2024 (10) TMI 1655X X X X Extracts X X X X X X X X Extracts X X X X ..... the day access to the portal made available; d) issue a Writ of Mandamus or any other Writ, order or direction; e) pass any other order or orders, direction or directions as this Hon'ble Court may deem fit and proper in the facts and circumstances of the case." 2. As would be evident therefrom, although a challenge is laid to the decisions rendered by the respondents while dealing with the application of the petitioner for revocation of cancellation, the petitioner also seeks the issuance of an appropriate writ providing for the cancellation to take effect from the date of the Show Cause Notice SCN dated 22 October 2022, instead of 30 November 2017. It is this prayer which has been principally addressed by Mr. Jain, learned counsel who appears for the writ petitioner before us. 3. Shorn of unnecessary details, the essential facts leading up to the filing of the present writ petition would appear to be as follows. 4. On 22 October 2022, the respondents issued a SCN calling upon the petitioner to explain why its registration ought not to be cancelled. This, since and according to them, on due inquiry it had been found that the petitioner was a non-existent entit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nal SCN dated 22 October 2022 and which constituted the foundation for the action which was initiated against the writ petitioner had at no stage indicated an intent of the respondents to cancel registration with retrospective effect. This becomes apparent from a reading of the SCN itself and which is reproduced hereinbelow:- "Show Cause Notice for Cancellation of Registration Whereas on the basis of information which has come to my notice, it appears that your registration is liable to be cancelled for the following reasons: 1 The taxpayer was found non existent during the physical verification. Therefore, cancellation of GSTN has been initiated as per Rule 21 (a) of the CGST Rules '2017. You are hereby directed to furnish a reply to the notice within seven working days from the date of service of this notice. You are hereby directed to appear before the undersigned on 31/10/2022 at 12:30 PM If you fail to furnish a reply within the stipulated date or fail to appear for personal hearing on the appointed date and time, the case will be decided ex parte on the basis of available records and on merits. Please note that your registration stands suspended with e ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to why the registration be not cancelled for the following reasons:- "Any Taxpayer other than composition taxpayer has not filed returns for a continuous period of six months" 3. Petitioner was in the business of services involving repair, alterations, additions, replacements, renovation, maintenance or remodelling of the building covered above, General construction services of harbours, waterways, dams, water mains and lines, irrigation and other waterworks, General construction services of long-distance underground/ overland/ submarine pipelines, communication and electric power lines (cables); pumping stations and related works; transformer stations and related works, General construction services of local water & sewage pipelines, electricity and communication cables & related works, Installation, assembly and erection services of other prefabricated structures and constructions and possessed a GST registration. 4. A show cause notice was issued to the petitioner on 07.04.2022 Though the notice does not specify any cogent reason, there is an observation in the notice stating failure to furnish returns for a continuous period of six months. The show ca ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is required to be cancelled with retrospective date also covering the period when the returns were filed and the taxpayer was compliant. 10. It is important to note that, according to the respondent, one of the consequences for cancelling a tax payer's registration with retrospective effect is that the taxpayer's customers are denied the input tax credit availed in respect of the supplies made by the tax payer during such period. Although, we do not consider it apposite to examine this aspect but assuming that the respondent's contention in this regard is correct, it would follow that the proper officer is also required to consider this aspect while passing any order for cancellation of GST registration with retrospective effect. Thus, a taxpayer's registration can be cancelled with retrospective effect only where such consequences are intended and are warranted. 11. The show cause notice does not even state that the registration is liable to be cancelled from a retrospective date. 12. The petition is allowed. The impugned show cause notice dated 07.04.2022, order of cancellation dated 13.07.2022 and the order in appeal dated 29.12.2023 are accordingly se ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pugned order dated 15.12.2021 passed on the Show Cause Notice dated 04.09.2021 does not give any reasons for cancellation. It, however, states that the registration is liable to be cancelled for the following reason "whereas no reply to the show cause notice has been submitted". However, the said order in itself is contradictory. The order states "reference to your reply dated 15.12.2021 in response to the notice to show cause dated 04.09.2021" and the reason stated for the cancellation is "whereas no reply to notice show cause has been submitted". The order further states that effective date of cancellation of registration is 01.07.2017 i.e., a retrospective date. 6. Neither the show cause notice, nor the order spell out the reasons for retrospective cancellation. In fact, in our view, order dated 15.12.2021 does not qualify as an order of cancellation of registration. On one hand, it states that the registration is liable to be cancelled and on the other, in the column at the bottom there are no dues stated to be due against the petitioner and the table shows nil demand. 7. Learned Counsel for the Petitioner submits that the said order reflected that the GST registrat ..... X X X X Extracts X X X X X X X X Extracts X X X X
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