Bhabatosh Paul vs. State Of West Bengal And Ors.
Original PDF →Facts
The petitioner, Bhabatosh Paul, filed a writ petition challenging the order of cancellation of his GST registration and a subsequent appellate order. The petitioner received a show cause notice on October 8, 2022, for failing to furnish returns for six months. The petitioner contended that he intended to comply and was willing to pay all dues, including tax, interest, penalty, and fine. The State argued that the petitioner failed to comply with statutory provisions, and no satisfactory reply was given to the show cause notice, leading to the cancellation. The State also noted that the petitioner's appeal was filed belatedly and dismissed. The Court acknowledged that the cancellation was due to non-filing of returns and not tax evasion.
Held
The Court held that the cancellation of the petitioner's registration was primarily due to non-filing of returns, and it was not a case of tax evasion. The Court noted that suspending or revoking registration can be counterproductive to revenue recovery as it prevents the petitioner from carrying on business and raising invoices, ultimately impacting tax recovery. Following the precedent set in *Subhakar Golder v. Assistant Commissioner of State Tax, Serampore Charge*, the Court decided to set aside the order cancelling the petitioner's registration and the subsequent appellate order. This was made conditional upon the petitioner filing all pending returns and paying the requisite tax, interest, fine, and penalty within four weeks of receiving the order. The Court directed the respondents to activate the portal within one week to facilitate compliance. If the petitioner fails to comply, the writ petition would stand dismissed.
Key Issues
1. Whether the cancellation of the petitioner's GST registration for non-filing of returns, despite the petitioner's willingness to comply and pay dues, is sustainable in law, particularly in light of the potential impact on revenue recovery? (Section 29 of CGST Act, 2017 and relevant provisions of WBGST Act, 2017). Petitioner's contention: The petitioner argued that he was always willing to comply with the Act and pay all dues. He relied on the Division Bench judgment in *Subhakar Golder v. Assistant Commissioner of State Tax, Serampore Charge* (MAT 639 of 2024) where similar cancellations were set aside subject to compliance. Revenue/State's contention: The State argued that the petitioner did not comply with statutory provisions, and therefore, the registration was cancelled. They asserted that the petitioner was given an opportunity to show cause, and no satisfactory reply was received. The State also pointed out the belated filing and dismissal of the petitioner's appeal.
Sections Cited
Section 29
AI-generated summary — verify with the full judgment below
Item no. ML 117 Ct. 5 14.08.2024 Saswata WPA 15754 of 2024 Bhabatosh Paul versus The State of West Bengal & Ors. Mr. Rajarshi Chatterjee Ms. Suman Sahani …For the petitioner Mr. Anriban Ray, Ld. GP Mr. Md. T.M.Siddiqui Mr. Tanoy Chakraborty Ms. S.Shaw Mr. Saptak Sanyal …For the State Mr. Kaushik Dey Mr. Tapan Bhanja …For the CGST authorities.
Affidavit of service filed in Court today is retained with the record.
None appears for the CGST authorities. However, Mr. Dey and Mr. Bhanja learned advocates who usually appear on behalf of the CGST authorities are present in Court today. Let a copy of the instant writ petition be served upon them. Accordingly, the appointment of Mr. Dey along with Mr. Bhanja be regularized.
The present writ application has been filed, inter alia, challenging the order of cancellation of registration of the petitioner under the CGST/WBGST Act, 20171 as also the order dated 6th March 2024 passed by the appellate authority in an appeal arising out of the order of cancellation of registration under the said Act.
It is the petitioner’s case that on or about 8th October 2022 the petitioner was served with a notice of show cause as to why the registration of the petitioner under the said Act shall not be cancelled for the petitioner having failed to furnish his returns for a continuous period of six months. 1 Hereinafter referred to as the “said Act”
Mr. Chatterjee, learned advocate appearing for the petitioner submits that the petitioner was and is all along interested to comply with the provisions of the said Act by filing his returns. Unfortunately, such fact could not be appropriately brought to the notice of the respondents. He submits that the petitioner is ready and willing to comply with the provisions of the said Act and make payment of tax, interest, penalty and fine.
By placing reliance on a judgment of the Hon’ble Division Bench of this Court delivered in the case of Subhakar Golder versus Assistant Commissioner of State Tax, Serampore Charge (MAT 639 of 2024) on 9th April 2024, it is submitted that in similar circumstances, similar order of cancellation of registration had been set aside, subject to the condition that the petitioner files returns for the entire period of default, pays requisite amount of tax and interest and fine and penalty. He submits that this Court may be pleased to set aside the order of cancellation and allow the petitioner to file his returns.
Mr. Ray, learned Government Pleader on the other hand submits that the petitioner had not complied with the statutory provisions and it is for such reason, the registration of the petitioner under the said Act was cancelled.
According to the respondent authorities the petitioner was given opportunity to show cause. Since, no satisfactory reply to the show cause was given by the petitioner, the authorities had cancelled the registration. There is no irregularity on the part of the authorities in cancelling the registration. In fact, the appeal was also filed belatedly by the petitioner which has also been dismissed by the Appellate Authority.
Heard the learned advocates appearing for the respective parties and considered the materials on record.
Admittedly, I find that the registration of the petitioner had been cancelled on the ground of non-filing of returns. It is not the case of the 2
respondents that the petitioner had been adopting dubious process to evade tax. Taking note of the fact that the suspension/revocation of registration would be counterproductive and works against the interest of the revenue since, the 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.
Having regard to the aforesaid and taking note of the direction issued by the Hon’ble Division Bench of this Court in the case of Subhankar Golder (supra), I propose to set aside the order dated 30th January, 2023 cancelling the registration of the petitioner subject to the condition that the petitioner files his returns for the entire period of default and pays requisite amount of tax and interest and fine and penalty. As a sequel thereto, the aforesaid order passed by the Appellate Authority on 6 th March 2024 is also set aside.
It is made clear that if the petitioner complies with the directions / conditions noted above, within 4 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. 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.
For the purpose of compliance of the above directions, the respondents are directed to activate the portal within one week from date, so that the petitioner can file his returns, pays requisite amount of tax and interest and fine and penalty.
With the above direction and observations, the writ application being WPA 15754 of 2024 is disposed of without any order as to costs. 3
All parties to act on the basis of the server copy of this order duly downloaded from this Hon’ble Court’s official website.
(Raja Basu Chowdhury, J.) 4
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.