Samarendra Nath Roy vs. Deputy Commissioner Of Revenue, State Tax, Howrah And Kadamtala Charge And Ors.

WPA/18423/2024HC CalcuttaGSTCNR WBCHCA035622202405 September 2024Bench: HON'BLE JUSTICE RAJA BASU CHOWDHURY6 pages

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Facts

The petitioner, Samarendra Nath Roy, filed a writ petition challenging an appellate order dated June 11, 2024, which upheld the cancellation of his GST registration. The registration was initially cancelled on July 11, 2023, solely for non-filing of returns. The petitioner claims to have subsequently filed the pending returns and paid the requisite tax. However, his appeal before the Appellate Authority was dismissed as being filed beyond the prescribed limitation period. The petitioner contended that he intended to comply with the Act and pay all dues, but the dismissal on limitation prevented consideration of these aspects. He approached the High Court as the appellate tribunal was not yet constituted.

Held

The Court held that the cancellation of the petitioner's GST registration, which was primarily based on non-filing of returns, should be set aside. The Court acknowledged the petitioner's subsequent compliance and his expressed willingness to pay all outstanding tax, interest, fine, and penalty. It reasoned that revoking registration can be counterproductive to revenue collection as it prevents the business from operating and raising invoices, thus impacting tax recovery. The Court found that the petitioner's intention to comply could not be ignored. Following the direction issued in Subhankar Golder v. Assitant Commissioner of State Tax, Serampore Charge & Ors., the Court proposed to set aside the cancellation order and the appellate order, subject to the petitioner filing all pending returns and paying the requisite amounts within four weeks. The Court directed the respondents to activate the portal for the petitioner to facilitate compliance. The registration would be restored upon compliance, failing which the writ petition would stand dismissed.

Key Issues

1. Whether the cancellation of the petitioner's GST registration, primarily for non-filing of returns, is sustainable when the petitioner subsequently complied with the filing requirements and expressed willingness to pay all dues, including tax, interest, penalty, and fine, under Section 39(1) of the WB GST/CGST Act, 2017? Petitioner's arguments: The petitioner argued that the cancellation order should be set aside, along with the appellate order, given his intention to comply with the Act and pay all dues. He relied on the principle that suspension/revocation of a license can be counterproductive and impact revenue recovery. He also referred to a Division Bench order in Subhankar Golder v. Assitant Commissioner of State Tax, Serampore Charge & Ors. (MAT 639 of 2024). Revenue's arguments: The respondents argued that the cancellation order was passed after providing an opportunity to show cause and that there was no irregularity. They contended that the appeal was hopelessly barred by limitation, and the Appellate Authority rightly rejected it. They stated that while they could not ascertain the exact liability at that stage, they would not object to the petitioner complying with the Act, subject to payment of all dues.

Sections Cited

Section 39(1), Section 107

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Cause title — parties, addresses and appearances

5th September, 2024 (AK) 111 W.P.A 18423 of 2024 Samarendra Nath Roy Vs. Deputy Commissioner of Revenue, State Tax, Howrah and Kadamtala Charge and others Mr. Prasenjit Burman Ms. Payel Koley Mr. Swapnesh Mallik …for the petitioner. Mr. Anirban Ray Md. T.M. Siddiqui Mr. Tanoy Chakraborty Mr. Saptak Sanyal …for the State. 1. The instant writ petition has been filed, inter alia, challenging an appellate order dated 11th June, 2024 passed under Section 107 of the WBGST/CGST Act, 2017 (hereinafter referred to as ‘the said Act’). 2. Mr. Burman, learned Advocate appearing on behalf of the petitioner, by drawing attention of this Court to the order of cancellation of registration dated 11th July, 2023 would submit that the petitioner’s registration under the said Act has been cancelled only on the ground of non-filing of returns. 3. He would submit that although the petitioner had complied with the direction as regards furnishing of returns under Section 39(1) of the said Act subsequently, after passing of the aforesaid order 2 and had paid the requisite tax, the above cancellation order had not been recalled. He submits that the petitioner had since applied before the Appellate Authority by filing an appeal. 4. Admittedly such appeal was filed belatedly beyond the prescribed period of limitation. However, despite the fact that the petitioner had all good intentions and is interested to make payment of tax, interest, penalty and fine as may be found due since, the appeal was dismissed on the ground of limitation such aspect could not be considered. He submits that the appellate tribunal is yet to be constituted and as such the instant writ petition has been filed. As such this Hon’ble Court in the given facts may be pleased to set aside the order passed by the Appellate Authority, inter alia, including the order of cancellation of registration on the undertaking given by the petitioner that the petitioner shall comply with the provisions of the said Act and shall pay tax, interest, fine and penalty as may be found due. 5. Mr. Sanyal, learned Advocate appearing on behalf of the respondents, would submit that since the petitioner did not comply with the provisions of the said Act and did not file the returns in time, after giving an opportunity to the petitioner to show cause, the 3 order of cancellation had been passed. There is no

irregularity in such an order.

The appeal filed by the petitioner was hopelessly barred by limitation and as such the Appellate Authority has rightly rejected the appeal. As regards the claim made by the petitioner that the petitioner is interested to comply with the provisions of the said Act by making payment of tax, interest, penalty and fine as may be found due, he submits that it is not possible at this stage for the respondents to identify the exact liability. However, if the petitioner is interested to comply with the provisions of the said Act, respondents do not intend to stand in the way subject to the petitioner making payment of requisite tax, interest, penalty, fine and late fee as may be found due.

Heard the learned Advocates appearing on behalf of the respective parties and consider the materials on record. Admittedly, I find that the petitioner’s registration under the said Act had been cancelled on the ground of non-filing of returns. It is not the case of the respondents that the petitioner had been adapting dubious process to evade tax. Taking note of the fact that the suspension/revocation of license would be counterproductive and works against the interest of the revenue since, the

4 petitioner in such a case would not be able to carry on his business in the sense that no invoice can be raised by the petitioner and ultimately would impact recovery of tax, I am of the view that the respondents should take a pragmatic view in the matter and permit the petitioner to carry on his business.

Although it has been argued by Mr. Sanyal that there is no irregularity on the part of the respondents in cancelling the registration and dismissing the appeal, however, the fact that the petitioner is now interested to comply with the provisions of the said Act, in my view, cannot be ignored.

Having regard to the direction issued by the Hon’ble Division Bench of this Court in the case of Subhankar Golder v. Assitant Commissioner of State Tax, Serampore Charge & Ors. (MAT 639 of 2024) on 9th April, 2024, I propose to set aside the order dated 11th July, 2023, cancelling the registration of the petitioner under the said Act, subject to the condition that the petitioner files his returns for the entire period of default and pays requisite amount of tax, interest, fine and penalty, if not already paid.

10.

It is made clear that if the petitioner complies with the directions/conditions noted above, within four weeks from the date of receipt of the server copy of this order, the petitioner’s registration under the said Act shall be restored by the Juri ictional Officer/respondent no.

However, if the petitioner fails to comply with the directions as aforesaid, the benefit of this order will not enure to the petitioner and the writ petition would stand automatically dismissed.

11.

For the purpose of compliance of the above directions, the respondents are directed to activate the portal within one week from the date of communication of this order, so that the petitioner can file his returns, pays requisite amount of tax, interest, fine and penalty if not already paid.

12.

As a sequel to the above, the order dated 11th July, 2023, cancelling the petitioner’s registration under the said Act and the order dated 11th June, 2024 passed by the Appellate Authority stand set aside.

13.

Since, no affidavit-in-opposition has been called for, the allegation made in the writ petition are deemed not to have been admitted by the respondents.

14.

With the above direction and observations, the writ petition is disposed of without any order as to costs.

15.

Urgent Photostat certified copy of this order, if applied for, be made available to the parties upon compliance with the necessary formalities.

(Raja Basu Chowdhury, J.)

Reproduced from the public record of the Calcutta High Court. Verify against the court's own copy before relying on it. Income tax judgments are on bharattax.net.