Facts of the Case
The petitioner, M/s Durga Raman Patnaik, a
proprietorship concern registered under the Central Goods and Services Tax Act,
2017, challenged the appellate order dated 7 October 2021 passed by the
Additional Commissioner, GST (Appeals), in Appeal No. 228/BBSR-GST/APPEAL/2021.
The underlying dispute arose from cancellation of the
petitioner’s GST registration under Section 29(2)(c) of the CGST Act on
account of failure to furnish returns for a continuous period of six months.
A show cause notice dated 21 August 2019 had been issued.
The petitioner submitted a reply dated 31 August 2019. However, the
registration was cancelled without assigning reasons for rejecting or
disregarding that reply. The cancellation took effect from 15 October 2019.
Instead of applying for revocation of cancellation under Section
30 of the CGST Act read with Rule 23 of the CGST Rules, the petitioner
preferred an appeal under Section 107 on 5 August 2021, after a delay of
approximately 660 days. The Appellate Authority rejected the appeal on 7
October 2021 as barred by limitation.
The record further indicated that, despite cancellation of
the GST registration, the petitioner had been permitted to deposit ₹3,09,360
together with late fee of ₹5,000 in relation to tax liability for October 2019,
and the relevant return was allowed to be furnished on 22 April 2021.
The petitioner thereafter approached the High Court seeking
relief against the appellate order and an effective opportunity to regularise
GST compliance by filing returns, paying tax, interest, penalty and late fee,
and seeking revocation of cancellation.
Issues Involved
- Whether
cancellation of GST registration under Section 29(2)(c) of the CGST Act
without assigning reasons, despite reference to the petitioner’s reply to
the show cause notice, could be sustained.
- Whether
the rejection of the petitioner’s delayed appeal under Section 107 of
the CGST Act required reconsideration in light of the Supreme Court’s
orders extending limitation during the COVID-19 pandemic.
- Whether
a taxpayer whose registration was cancelled for non-filing of returns
could be permitted to regularise defaults by filing pending returns and
paying tax, interest, penalty and late fee.
- Whether,
after such compliance, the petitioner could be permitted to seek revocation
of cancellation under Section 30 read with Rule 23 along with
condonation of delay.
- Whether
the statutory framework governing cancellation and revocation should be
applied in a manner that facilitates genuine taxpayers returning to GST
compliance rather than permanently excluding them from the GST regime.
- Whether
technical limitations of the GST portal could defeat the substantive
relief granted to a taxpayer willing to comply with statutory obligations.
Petitioner’s Arguments
The petitioner contended that the Appellate Authority
adopted an unduly technical and pedantic approach while rejecting the appeal on
limitation.
It was argued that genuine difficulties faced by taxpayers
during the initial implementation of GST, coupled with the extraordinary disruption
caused by the COVID-19 pandemic, required a pragmatic approach.
The petitioner relied upon the statutory remedy under Section
30 of the CGST Act read with Rule 23 of the CGST Rules and submitted that
an opportunity should be granted to:
- file
pending GST returns;
- pay
outstanding tax;
- discharge
applicable interest;
- pay
penalty and late fee; and
- thereafter
seek revocation of cancellation of registration.
Reliance was placed upon GST relief and amnesty measures,
including:
- Notification
No. 19/2021–Central Tax dated 1 June 2021,
concerning reduction or waiver of late fee for specified delayed GSTR-3B
returns;
- Notification
No. 33/2021–Central Tax dated 29 August 2021,
extending the relevant amnesty period; and
- Notification
No. 34/2021–Central Tax dated 29 August 2021,
extending timelines in specified cases for filing applications for
revocation of cancellation of registration.
The petitioner also relied upon the approach adopted in Nirmani
Engineers and Constructions Pvt. Ltd. vs Commissioner of CT & GST, Odisha
and Others, where relief had been granted subject to payment of dues and
compliance with statutory requirements.
The petitioner maintained that, if granted an opportunity,
all required returns would be furnished and tax, interest, penalty and late fee
would be paid, after which an application for revocation could be considered.
Amicus Curiae’s Submissions
The learned Amicus Curiae highlighted the difficulties faced
by taxpayers in transitioning to electronic GST compliance, particularly during
the early years of GST implementation and the COVID-19 pandemic.
It was submitted that the object of GST registration is to
facilitate lawful business activity, tax collection and compliance, rather than
permanently exclude taxpayers who are willing to regularise their defaults.
The Court was requested to consider a practical mechanism
allowing taxpayers whose registrations had been cancelled under Section
29(2)(b) or Section 29(2)(c) to seek revocation after satisfying statutory
liabilities.
Reliance was also placed upon Tvl. Suguna Cutpiece Center
vs The Appellate Authority and Another, 2022 (61) GSTL 515 (Mad), where the
Madras High Court granted conditional relief to taxpayers whose registrations
had been cancelled for failure to file returns and whose appeals had been
rejected on limitation.
Respondents’ Arguments
The Revenue submitted, on instructions, that if the
petitioner:
- deposited
the required tax;
- paid
applicable interest;
- paid
penalty and late fee; and
- furnished
all pending returns,
then, subject to verification by the competent authority, an
application properly made under Section 30 of the CGST Act for
revocation of cancellation could be considered by the Registering Authority.
Thus, the respondents did not dispute that revocation could
be considered after substantive statutory compliance, subject to verification
and a duly constituted application.
Court Findings / Order
The High Court examined the statutory scheme governing GST
registration, cancellation, revocation and appeal, including Sections 29, 30
and 107 of the CGST Act and Rules 22 and 23 of the CGST Rules.
1. Cancellation Order Lacked Reasons
The Court noticed that the cancellation order referred to
the petitioner’s reply dated 31 August 2019 but did not assign reasons for
rejecting or disregarding that reply.
The Court emphasised the importance of reasoned orders and
adherence to principles of natural justice in GST cancellation proceedings.
2. Petitioner Chose the Wrong Remedy
The Court observed that, apparently due to confusion
concerning the newly introduced GST procedure, the petitioner preferred an
appeal under Section 107 instead of availing the remedy of revocation under Section
30 read with Rule 23.
3. COVID-19 Limitation Extension Was Material
The High Court found that when the Appellate Authority
rejected the appeals of 32 taxpayers by common order dated 7 October 2021, it
could not have considered the Supreme Court’s subsequent order dated 10 January
2022 concerning extension of limitation in view of the third COVID-19 surge.
The Court held that this subsequent development had a
bearing on the matter and that the appellate order deserved to be set aside.
4. GST Law Should Facilitate Genuine Compliance
The Court adopted a pragmatic approach toward a taxpayer
willing to:
- furnish
pending returns;
- pay
tax;
- discharge
interest;
- pay
penalty;
- pay
late fee; and
- seek
revocation of cancellation.
The judgment recognised that keeping willing taxpayers
outside the GST regime may not serve revenue interests where statutory
compliance can still be secured.
5. Conditional Relief Granted
The Court granted relief subject to compliance. The
petitioner was directed to file returns for the period prior to cancellation,
where not already filed, together with unpaid tax, interest for belated
payment, penalty and statutory fine or fee for delayed filing within the period
specified by the Court.
The judgment further made it clear that payment of tax,
interest, penalty, fine or fee could not be adjusted from unutilised or
unclaimed Input Tax Credit lying with the petitioner.
After payment of tax, interest, penalty and late fee, if
any, and uploading of returns, the petitioner was permitted to file an
application for revocation of cancellation of registration within seven days,
together with an application for condonation of delay.
The proper officer, registering authority or competent
authority was directed to consider such request favourably, condone the delay
and revoke the cancellation of registration.
The opposite parties were also directed to take suitable
steps through the GST Network or other agency maintaining the GST portal so
that the petitioner could file returns and pay statutory dues without technical
obstruction.
The exercise was directed to be completed within 90 days
from receipt of the judgment. The competent authority retained liberty to
verify the correctness of claims made in the returns and take lawful action
where necessary.
Important Clarification / Legal Principle
Established
This judgment establishes several important principles
concerning GST registration cancellation and revocation:
First, cancellation of GST
registration has serious civil and commercial consequences, and an order
referring to a taxpayer’s reply should not disregard that reply without
assigning reasons.
Second, where registration is
cancelled for non-filing of returns under Section 29(2)(c), a genuine
taxpayer willing to clear statutory defaults may, in appropriate circumstances,
receive conditional relief enabling regularisation and revocation.
Third, payment of tax, interest,
penalty, fine and fee under the relief granted by the Court cannot be
adjusted against unutilised or unclaimed Input Tax Credit; compliance must
be made in accordance with the conditions imposed by the judgment.
Fourth, after filing returns and
paying the prescribed dues, the taxpayer may seek revocation under Section
30 read with Rule 23, accompanied by a request for condonation of delay.
Fifth, technical limitations in the
GST portal should not render judicial relief ineffective. The tax
administration may be required to ensure portal functionality enabling filing
of returns and payment of dues.
Sixth, restoration or revocation of
registration does not prevent the competent authority from verifying the
returns, examining the correctness of claims, or initiating lawful proceedings
where discrepancies are found.
Seventh, the judgment does not grant
an unconditional waiver of tax liability or statutory compliance. The relief is
expressly conditional upon filing returns, paying dues and satisfying the
prescribed procedural requirements.
Sections and Rules Involved
- Section
29(2)(c), CGST Act, 2017 – Cancellation of
registration for continuous failure to furnish returns.
- Section
30, CGST Act, 2017 – Revocation of cancellation of
registration.
- Section
39, CGST Act, 2017 – Furnishing of returns.
- Section
47, CGST Act, 2017 – Levy of late fee.
- Section
107, CGST Act, 2017 – Appeals to the Appellate Authority.
- Section
128, CGST Act, 2017 – Power to waive penalty or late fee
or both.
- Section
168A, CGST Act, 2017 – Power to extend time limits in
special circumstances.
- Rule
22, CGST Rules, 2017 – Procedure for cancellation of
registration.
- Rule
23, CGST Rules, 2017 – Revocation of cancellation of
registration.
- Rule
61, CGST Rules, 2017 – Form and manner of submission of
returns.
- Articles 226 and 227 of the Constitution of India – Writ and supervisory jurisdiction of the High Court.
Link to download the order - https://mytaxexpert.co.in/uploads/1783504155_1531compressed.pdf
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