M/S. M H Trading Co. And Ors. vs. Assistant Commissioner Of State Tax, Tamluk Charge And Ors.
Original PDF →Facts
The petitioner, M/s. M H Trading Co. & Ors., challenged an order dated July 28, 2023, passed by the Appellate Authority under Section 107 of the WBGST/CGST Act, 2017. The petitioner's registration was cancelled on January 19, 2022, for failing to submit returns, despite a show-cause notice and response. The appeal filed under Section 107 was rejected by the Appellate Authority due to delay, which was condoned only up to one month beyond the prescribed time. The petitioner argued that despite intending to file returns, the cancellation order was issued. The revenue contended that the cancellation was due to non-compliance with the Act.
Held
The Court held that the cancellation of the petitioner's registration was counterproductive and against the interest of revenue, as it would prevent the petitioner from carrying on business, raising invoices, and ultimately impacting tax recovery. Citing the case of Subhakar Golder v. Assistant Commissioner of State Tax, Serampore Charge, the Court set aside the order dated January 19, 2022, cancelling the petitioner's registration. This was made conditional upon the petitioner filing all pending returns and paying the requisite tax, interest, fine, and penalty within four weeks. The Appellate Authority's order dated July 28, 2023, was also set aside. The Court directed the respondents to activate the portal within one week to facilitate compliance. If the petitioner complies, their registration will be restored; otherwise, the writ petition will stand dismissed.
Key Issues
1. Whether the Appellate Authority erred in rejecting the petitioner's appeal solely on the ground of delay, given the circumstances surrounding the cancellation of registration under Section 107 of the WBGST/CGST Act, 2017? Petitioner's arguments: The petitioner contended that the cancellation of registration was issued despite their good intentions to file returns and that the Appellate Authority's rejection of the appeal on grounds of delay was erroneous. They likely argued for a more lenient approach considering the potential impact on revenue collection if the business could not operate. Revenue's arguments: The revenue argued that the petitioner's registration was cancelled due to non-compliance with the provisions of the said Act. They likely maintained that the appeal was correctly rejected due to the delay in filing, as per the statutory time limits.
Sections Cited
Section 107
AI-generated summary — verify with the full judgment below
2024 Item No. ML-50 Court No.5 Kaushik
W.P.A. 13505 of 2024 M/s. M H Trading Co. & Ors. Versus Assistant Commissioner of State Tax, Tamluk Charge & Ors. Mr. Sandip Choraria Mr. Rishav Manna …For the petitioner Mr. Anirban Ray, learned Government Pleader Mr. T. M. Siddiqui …For the State
The present writ petition has been filed, inter alia, challenging the order dated July 28, 2023 passed by the Appellate Authority under Section 107 of the WBGST/CGST Act, 2017 (hereinafter referred to as the said Act).
It is the petitioner’s case that the registration of the petitioner no.1 was cancelled under the provisions of the said Act by an order dated January 19, 2022 for the petitioner no.1 having failed to submit its returns. Prior to the issuance of order of cancellation, the petitioner no.1 was served with a show-cause notice dated December 7, 2021, which was duly responded by the petitioner no.
It is also the petitioners’ case that despite the fact that the petitioner no.1 had all good intension to file returns, the order of cancellation had been issued. Being aggrieved the petitioner no.1 had filed an appeal under the provisions of Section 107 of the said Act, which came to be rejected by an order dated July 28,
2023 on the ground of delay in submission of the aforesaid appeal. It appears that the Appellate Authority by proceeding on the premise that the delay of filing of the appeal can only be condoned for a period upto one month beyond the time prescribed in Section 107 of the said Act and the petitioner no.1 having not filed the appeal within such time, the appeal was rejected. The said order forms the subject matter of challenge before this Court.
Having heard the learned counsels appearing for the respective parties and having considered the materials on record, it would appear that in this case, admittedly the petitioner no.1’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 no.1 had been adopting dubious process to evade tax. Taking note of the fact that suspension/revocation of license would be counterproductive and works against the interest of the revenue since, the petitioner no.1 in such a case would not able to carry on its business in the sense that no invoice can be raised by the petitioner no. 1 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 no.1 to carry on its business.
I find that it is the respondents’ contention that the petitioner no.1 having not complied with the provisions of the said Act, the registration of the 2
petitioner no.1 under the said Act had been cancelled.
Be that as it may, for reasons noted hereinabove and having regard to the direction issued by the Hon’ble Division Bench of this Court in the case of Subhakar Golder v. Assistant Commissioner of State Tax, Serampore Charge (MAT 639 of 2024) on 9th April 2024, I propose to set aside the order dated January 19, 2022 cancelling the registration of the petitioner no. 1 under the said Act subject to the petitioner no. 1 filing its return for the entire period of default and making payment of requisite amount of tax, interest, fine and penalty, if not already paid.
It is made clear that if the petitioner no. 1 complies with the direction/condition noted above, within four weeks from the date of receipt of the server copy of this order, the registration of the petitioner no. 1 under the said Act shall be restored by the Juri ictional Officer. However, if the petitioner no. 1 fails to comply with the direction as aforesaid, the benefit of this order shall not enure to the petitioner no. 1 and the writ petition would automatically stand 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 no. 1 can file its returns, pays requisite amount of tax, interest, fine and penalty, if not already paid. 3
As a sequel to the above, the order dated July 28, 2023 passed by the Appellate Authority under Section 107 of the said Act also stands set aside.
With the above directions the writ petition being WPA 13505 of 2024 is disposed of without any order as to costs. 10.Since, no affidavit has been called for, the allegations made in the writ petition are deemed not to have been admitted by the respondents. 11.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.