Palakkal Meethale Jayakrishnan v. The Superintendent - Kerala High Court, 18 July 2022

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR. JUSTICE GOPINATH P. MONDAY, THE 18TH DAY OF JULY 2022 / 27TH ASHADHA, 1944 WP(C) NO. 3179 OF 2022 PETITIONER/S: PALAKKAL MEETHALE JAYAKRISHNAN AGED 73 YEARS "SREE", HOUSE NO.64, PAZHERI COMPLEX, CHANDRA NAGAR, MARUTHA ROAD, PALAKKAD-678007. BY ADVS. HARISANKAR V. MENON MEERA V.MENON R.SREEJITH K.KRISHNA RESPONDENT/S: 1 THE SUPERINTENDENT, CENTRAL TAX AND CENTRAL EXCISE, C R BUILDING, METTUPALAYAM STREET, PALAKKAD SOUTH RANGE, PALAKKAD- 678001. 2 THE JOINT COMMISSIONER CGST DEPARTMENT, GST BHAVAN, MANANCHIRA, KOZHIKODE- 673001. 3 THE ASSISTANT COMMISSIONER GOODS AND SERVICES TAX DIVISION, PALAKKAD-678001. 4 UNION OF INDIA REPRESENTED BY SECRETARY TO GOVERNMENT, MINISTRY OF FINANCE, DEPARTMENT OF REVENUE, CENTRAL BOARD OF INDIRECT TAXES, CUSTOMS, NEW DELHI-110001. BY ADV SMT.PREETHA S. NAIR, SC, CENTRAL BOARD OF EXCISE AND CUSTOMS DR.THUSHARA JAMES, SR. GOVT. PLEADER THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 18.07.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

W.P.(C).3179/22 2 JUDGMENT Petitioner has approached this Court being aggrieved by Ext.P3 order/Ext.P5 reply through which his application for revocation of the order cancelling registration under the GST laws has been rejected, advising him to file an appeal under Section 107 of the CGST Act before the first Appellate Authority against the order of revocation.

The learned counsel appearing for the petitioner submits that Section 30 of the CGST Act permits the petitioner to seek revocation of the order cancelling registration on filing of returns for the defaulted period along with payment of tax, interest and late fee. It is submitted that the time limit prescribed in Section 30 may not apply on account of the orders of the Hon’ble Supreme Court in Suo Motu W.P.(C) No.3 of 2020. It is submitted that the order cancelling the registration of this case was issued on 20.01.2021 and the petitioner filed an application for revocation of the order on 10.01.2022. It is submitted that going by the orders of the Supreme Court in Suo Motu W.P(C).No.3 of 2020, the period from 15.3.2020 till 28.2.2022 has to be excluded for the purposes of determining any period of limitation including the limitation provided for Section 30 of the CGST Act.

The learned Standing Counsel appearing for the respondent department vehemently opposed the grant of any relief to the petitioner. It is submitted that the department was forced to cancel the registration of the petitioner on account of his failure to file returns and remit the tax. It is

W.P.(C).3179/22 3 submitted that there is clear evidence collected by the department to show that the petitioner had collected GST from his customers and had diverted the funds for other purposes and therefore, he is not entitled to any relief from this Court.

The learned counsel appearing for the petitioner, in reply, points out that this Court has considered a similar issue in W.P(C) No.19904 of 2022 and it was held as under:- “6. Having heard the learned counsel as above, I am of the view that the petitioner is entitled to relief. The facts of this case show that the registration of the petitioner was cancelled on 02.02.2021. The petitioner had time of 30 days from 02.02.2021 to file an application for revocation. The said period of 30 days could be extended by a period of 30 days by the Joint Commissioner, going by the provisions contained in Section 30 of the CGST Act. If one were to apply the directions issued by the Hon’ble Supreme Court in Suo Moto Writ Petition No.3 of 2020, to the periods of limitation prescribed by Section 30 of the CGST Act, it can be held, without any difficulty, that the petitioner had time till 28.05.2022 to file an application for revocation. The petitioner filed an appeal and possibly, by bona fide mistake, did so on 20.11.2021. This can only be seen as a availing of a wrong remedy by the petitioner. If that date was taken as the application for revocation, the period of the application for revocation can be treated as one filed within time. Accordingly, this writ petition is allowed and it is directed that if the petitioner files a fresh application for revocation within seven days from the date of receipt of a certified copy of this judgment, the same shall be treated as one filed on 20.11.2021 and the orders shall be passed by the 1st respondent, treating the application as one filed within time, taking into consideration the orders of the Hon’ble

W.P.(C).3179/22 4 Supreme Court in Suo Moto Writ Petition No.3 of 2020. However, it is made clear that all legal consequences under the provisions of the GST Acts and the Rules (following cancellation of registration and belated filing of returns) shall continue to operate against the petitioner and the restoration of registration by orders of this Court as above, will not result in the petitioner being absolved of any statutory liability as aforesaid. In other words, the statutory liabilities of the petitioner following cancellation of registration, non-filing of returns and non-payment of tax will continue to operate against the petitioner notwithstanding the directions contained in this judgment. The writ petition is allowed as above.” Having regard to the facts and circumstances of the case and taking note of the judgment in W.P(C).No.19904 of 2022, this writ petition is disposed of directing the 3rd respondent to consider Ext.P4 application, filed by the petitioner for revocation of the order cancelling his registration, as one filed within the time provided under Section 30 of the CGST Act and to pass orders thereon, in accordance with law, within a period of one month from the date of receipt of a certified copy of this judgment. The writ petition is disposed of as above. GOPINATH P. JUDGE okb/18.7 //// P.S. to Judge

W.P.(C).3179/22 5 APPENDIX OF WP(C) 3179/2022 PETITIONER EXHIBITS Exhibit P1 COPY OF REGISTRATION CERTIFICATE OF THE PETITIONER. Exhibit P2 COPY OF SHOW CAUSE NOTICE ISSUED BY THE 1ST RESPONDENT. Exhibit P3 COPY OF THE ORDER ISSUED BY THE 1ST RESPONDENT. Exhibit P4 COPY OF THE APPLICATION FILED BY THE PETITIONER BEFORE THE 2ND RESPONDENT. Exhibit P5 COPY OF REPLY ISSUED BY THE 3RD RESPONDENT.