Vijayakumar Thimasandra Mahadevappa vs. Commissioner Of GST - Karnataka High Court, 10 March 2023

Cause title — parties, addresses and appearances

- 1 - WP No. 480 of 2023 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 10TH DAY OF MARCH, 2023 BEFORE THE HON'BLE MR JUSTICE B M SHYAM PRASAD WRIT PETITION NO. 480 OF 2023 (T-RES) BETWEEN: VIJAYAKUMAR THIMASANDRA MAHADEVAPPA S/O MAHADEVAPPA AGED 56 YEARS BANGALORE MAIN ROAD, NEAR DHANUSH LODGE HAROHALLI KANAKAPURA TALUK – 562112. …PETITIONER (BY SRI. MAHESH ARKALGUD., ADVOCATE) AND: 1. COMMISSIONER OF GST BANGALORE WEST GOVERNMENT OF INDIA OFFICE OF THE COMMISSIONER OF CENTRAL TAX (APPEALS) MYSURU, S-1, S-2, VINAYA MARGA SIDDHARATHA NAGAR MYSURU – 570001. 2. SUPERINTENDENT WEST COMMISSIONERATE BMTC BUS STAND, 1ST FLOOR, TTMC KANAKAPURA RD, BANASHANKARI STAGE II Digitally signed by NARASIMHA MURTHY VANAMALA Location: HIGH COURT OF KARNATAKA - 2 - WP No. 480 of 2023 BANASHANKARI BENGALURU KARNATAKA – 560070. …RESPONDENTS (BY SRI. JEEVAN J NEERALGI.,ADVOCATE) THIS WRIT PETITION IS FILED UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH ORDER DATED 20.04.2022 BEARING REFERENCE NO. ZA290422059182M VIDE ANNEXURE-A ISSUED BY THE R2 BY ISSUING A WRIT OR AN ORDER IN THE NATURE OF CERTIORARI; QUASH ORDER DATED 14.12.2022 PASSED IN APPEAL NUMBER MYS-SPP-ADC/JC(A)-084-2022-23 -GST VIDE ANNEXURE-F PASSED BY THE R1 PRINCIPAL COMMISSIONER OF CENTRAL TAX AT MYSORE BY ISSUING A WRIT OR ORDER IN THE NATURE OF A CERTIORARI. THIS PETITION, COMING ON FOR PRELIMINARY HEARING IN ‘B’ GROUP, THIS DAY, THE COURT MADE THE FOLLOWING:

ORDER

The petitioner is aggrieved by the second respondent’s order dated 20.04.2022 [Annexure-A] and the Order-in-appeal dated 14.12.2022 [Annexure-

- 3 - F]. The second respondent by the order dated 20.04.2022 has cancelled the petitioner’s GST registration and the first respondent, the appellate authority under Section 107 of the Central Goods and Services Tax Act, 2017 [for short the ‘CGST Act’] by the next impugned order dated 14.12.2022, has dismissed the petitioner’s appeal under Section 107(1) and 107(4) of the CGST Act on the ground of delay.

Sri. Mahesh Arkalgud, the learned counsel for the petitioner, submits that this Court must interfere with the impugned order dated 20.04.2022 even if the petitioner’s appeal as against such order is dismissed on the ground that it is belated because of two reasons. He argues that the second respondent, for cancellation of the GST registration, has recorded his opinion that the petitioner’s registration must be cancelled, and his opinion is ostensibly on examination of the petitioner’s reply and the

- 4 - submissions at the time of hearing. Irrefutably, the petitioner has neither filed response nor participated in any personal hearing. This demonstrates that there is complete lack of application of mind and hence arbitrary exercise of juri iction.

Sri. Mahesh Arkalgud next submits that during the relevant period the proprietor was hospitalized for over a period of one month because of Left Hemiplegia/Tentorial Meningioma, and this is a condition where there will be certain growth on the brain cells. The proprietor had to go through a prolonged period of convalescence. As such the bona fides have been placed on record in filing the returns, but if opportunity is granted the returns will be filed.

Sri Jeevan J Neeralagi, the learned counsel for the respondents, submits that the petitioner cannot really complain of lack of opportunity inasmuch as the petitioner does not dispute the service of show cause notice dated 29.03.2022 and if indeed the petitioner was constrained during this time, it would have been open to him to place necessary material before the second respondent. However, Jeevan J Neeralagi in the light of the reasons recorded in Annexure-A cannot contest that despite recording that the petitioner has not responded to the show cause notice dated 29.03.2022, the second respondent has recorded an opinion based on the alleged examination of the reply and the submissions made at the time of personal hearing.

This Court in these circumstances must opine that there is complete lack of application of mind in cancelling the petitioner’s registration and the petitioner has made out grounds that would justify interference. Hence, the petition is allowed, and the order dated 20.04.2022 [Annexure-A] is quashed on the condition that the petitioner files returns within a period of four [4] weeks from the

- 6 - date of receipt of a certified copy of this order. Failing which, the cancellation order shall stand revived. Insofar as the petitioner’s grievance as against the order dated 14.12.2022 [Annexure-F] in view this Court’s finding as against Annexure-A, the same stands disposed of as not surviving for consideration. JUDGE