Pazhayidom Food Ventures (P) LTD. vs. Superintendent Commercial Taxes - Kerala High Court, 08 June 2020

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR. JUSTICE AMIT RAWAL MONDAY, THE 08TH DAY OF JUNE 2020 / 18TH JYAISHTA, 1942 WP(C).No.5665 OF 2020(G) PETITIONER/S: PAZHAYIDOM FOOD VENTURES (P) LTD., 3/4902, VADAKKEDATHU BUILDING, KURICHITHANAM P.O., UZHAVOOR - 686 634, REPRESENTED BY ITS MANAGING DIRECTOR SATHEESH MOHAN. BY ADV. SRI.PREMJIT NAGENDRAN RESPONDENT/S: 1 SUPERINTENDENT COMMERCIAL TAXES, 1ST CIRCLE, KOTTAYAM, KERALA. 2 ADDL.R2. SUPERINTENDENT CGST,PALA. IS IMPLEADED AS PER ORDER DATED 01.06.2020. OTHER PRESENT: GP DR THUSHARA JAMES SRI SREELAL N WARRIER SC THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 08.06.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

WP(C).No.5665 OF 2020(G) 2 JUDGMENT Dated this the 8th day of June 2020 The brief facts leading to filing of instant case is that the petitioner is a private limited company engaged in outdoor catering service. According to the revenue, the petitioner did not file the return resulted into a show cause notice for cancellation of registration dated 9th January 2020, Ext.P2. The aforementioned notice was replied and thereafter issued a cancellation order dated 11.01.2020. 2. Learned counsel appearing on behalf of the petitioner submits that the show cause notice in Form GST REG-17 did not mention about the date, month and year as well as the time for appearance of the petitioner. The contents of the same are vague and do not commensurate with the format prescribed in Central Goods and Service Tax Rules, 2017 where a column of day, month and year has been prescribed. It is on that account this Court had issued notice and sought the comments thus impelling to invoke, the extra ordinary juri iction of this Court as the

WP(C).No.5665 OF 2020(G) 3 order under challenge is without juri iction.

Learned counsel appearing on behalf of the respondent submits that the actual format of GST published under the Rule 22(1) of 2017, is one where there is a provision of date, month as well as year. Vide Ext.P2 show cause notice, the petitioner was called upon to submit a reply within 7 days and in case of any failure or personal appearance would entail into an exparte order. An objection qua the maintainability in view of the alternative remedy has also been taken.

I have heard the learned counsel for the parties and appraised the paper book. Before referring to the rival contentions of the parties, it would be expedient to extract the contents of notice Ext.P2 as well as actual format ie., Form GST REG-17 contained in Rule No.22 (1). Ext.P2:

Form GST REG - 17 [See Rule 22(1)] Reference Number:ZA320120008425E Date:09/01/2020

WP(C).No.5665 OF 2020(G) 4 To PAZHAYIDOM FOOD VENTURES PRIVATE LIMITED 3/402, VADAKKEDATHU BUILDING, KURICHITHANAM P.O, UZHAVOOR, ERNAKULAM, KERALA 686634 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:

Any Taxpayer other than composition taxpayer has not field returns for a continuous period of six months You are hereby directed to furnish a reply to the notice within seven working days from the date of service of this notice. 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. Place:Kerala Date:09/01/2020 TOMY JOSEPH Superintendent Commercial Tax Office, I Circle:Kottayam:Kerala Form GST REG-17 contained in Rule No.22 (1) FORM GST REG-17 [Reference No.: Date: To Registration Number (GSTIN/UIN) (Name) (Address) SHOW CAUSE NOTICE FOR CANCELLATION OF REGISTRATION

WP(C).No.5665 OF 2020(G) 5 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 2 3 …. * You are hereby directed to furnish a reply to this notice within seven working days from the date of service of this notice. * You are hereby directed to appear before the undersigned on DD/MM/YYYY at HH/MM. 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. Place: Date: Signature <Name of the Officer> Designation Juri iction

On juxtaposing of both the notices, show cause notice Ext.P2 is not in order. The reference of date, month, year and time is conspicuously wanting. In my view, the notice lacks the compliance of the principles of audi alteram partem. Accordingly, the notice and the order of cancellation Exts.P2 and P4 are hereby quashed. The matter is remitted to the 2nd respondent to comply with the observation derived from the Form GST REG-17. Learned counsel appearing on behalf of the

WP(C).No.5665 OF 2020(G) 6 respondent is also directed to take up the issue at the appropriate level so that the affected parties are not compelled to approach this Court on non compliance of principles of natural justice. Both the counsel representing the parties are in ad idem by requesting for a date of appearance, personal hearing and submission of the reply by this Court. Keeping in such request, I direct the petitioner to appear on 30th June 2020 at 11.30 a.m before the 2nd respondent. With the aforementioned observation, the writ petition stands allowed. AMIT RAWAL sab JUDGE

WP(C).No.5665 OF 2020(G) 7 APPENDIX PETITIONER'S/S EXHIBITS: EXHIBIT P1 THEOF THE REPLY FILED BY THE PETITIONER BEFORE THE STATE TX OFFICER (IB) OF THE STATE GOODS AND SERVICE TAX DEPARTMENT DATED 27/12/2019. EXHIBIT P2 AOF THE SHOW CAUSE NOTICE DATED 09/01/2020 ISSUED BY THE FIRST RESPONDENT. EXHIBIT P3 A SCREEN SHOT OF THE REPLY TO THE NOTICE SENT BY THE PETITIONER DATED 16/01/2020. EXHIBIT P4 AOF ORDER NO.ZA 320220008809Y DATED 11/01/2020 CANCELLING THE REGISTRATION OF THE PETITIONER BY THE RESPONDENT. EXHIBIT P5 AOF THE APPLICATION FOR REVOCATION OF CANCELLATION UNDER SECTION 30 OF THE GOODS AND SERVICES TAX ACT FILED BY THE PETITIONER BEFORE THE FIRST RESPONDENT DATED 14/02/2020.