M/S M.S.Enterprises vs. Superintendent Of Central Tax
Original PDF →Facts
M/s M.S. Enterprises, a proprietorship firm dealing in hardware, had its GST registration cancelled by the Superintendent of Central Tax (1st respondent) on July 30, 2021, citing non-filing of GST returns for six continuous months. The petitioner had filed a reply on July 16, 2021, which was deemed unsatisfactory. Subsequently, the petitioner's appeal against this cancellation order was rejected by the Joint Commissioner (Appeals-II) (2nd respondent) on December 15, 2022, on the grounds of limitation. The petitioner then filed a writ petition before the High Court challenging both the cancellation order and the appellate order.
Held
The High Court held that the issue raised was no longer res integra, referring to a previous division bench judgment of the same court in M/s. Chenna Krishnama Charyulu Karampudi v. Additional Commissioner Appeals. Following that precedent, the Court found that while the appellate authority might be correct in holding that it cannot condone delays beyond the extended period of one month, such a rigid stance could adversely affect the petitioner, especially since the GST Tribunal had not been constituted. The Court observed that the cancellation of GST registration was a significant issue. Therefore, it would be just and proper to remand the entire matter back to the respondent for reconsideration. The impugned orders dated July 30, 2021, and December 15, 2022, were set aside. The matter was remanded back to the 1st respondent (Superintendent of Central Tax) to pass a fresh order in accordance with the law after providing an opportunity of hearing to the petitioner. The petitioner was also permitted to furnish any pending returns.
Key Issues
1. Whether the High Court, in its writ jurisdiction, can interfere with the order of cancellation of GST registration and the subsequent appellate order, particularly when the appeal was rejected on grounds of limitation? Petitioner's arguments: The petitioner contended that the GST Tribunal has not yet been constituted, leaving them without an effective alternative remedy. They argued that the rejection of their appeal solely on limitation grounds, especially in a case involving cancellation of registration, would leave them without any recourse. They relied on the principle that in such circumstances, a remand for reconsideration on merits is appropriate. Revenue's arguments: The judgment does not record any specific arguments made by the respondents. However, their actions (passing the cancellation order and rejecting the appeal on limitation) indicate their stance that the petitioner failed to comply with procedural requirements.
Sections Cited
Section 107, Section 109, Section 112
AI-generated summary — verify with the full judgment below
Cause title — parties, addresses and appearances
The court made the following: oRDER soLlclroR GEN oF INDIA 2 3
THE HON'BLE THE CHIEF JUSTICE UJJAL BHTIYAN AND THE HON'BLE SRI JUSTICE N. TUKARAMJI WRIT PETITION No.7OO8 of 2023 ORDER: (Per the Hon'ble the Chief Justice Ujjal Bhugan) Heard Mr. Suresh Kumar, learned counsel representing Mr. Goondla Venkatesr.l,arlu, learned counsel for the petitioner and Ms. B.Sapna Reddy, learned counsei for respondent Nos. I and 2. We have also heard Mr. G.Praveen Kumar, Iearned Deputy Solicitor General of India representing the 3'a respondent.
By filing this petition under Article 226 of the Constitution of India, petitioner has assailed legality and validity of the order dated 3O.O7.2O21 passed by the 1"t respondent as well as the order-in-appeal dated 15.12.2022 passed by the 2"d respondent ,/
By the first order dated 30.07.202 1, the Goods and Services Tax (GST) registration of the petitioner has been I
- ITCJ & NTRJ W.P.No 7OO8 of 2023 cancelled and by the order-in-appeal dated 15'12'2022' appeal filed by the petitioner against such canccllation order has been rejected. 4 . Petitioner before us is a proprietorship Iirm engaged in the business of trading in hardware goods. After enactment of GST laws, it got itself registered r.r'ith the GST authorities bearing registration No.36AFYPM8562N128. On 1,1.O5.2O21 , l"t respondent issued short- cause notice to the petitioner to show cause as to r,vhy its GST rcgistration should not be cancelled on the ground that petitioner had not hled GST returns for a continuous period of six months. It appears that reply filed by the petitioner on 16.07.202 1 was found to be not satisfactory by the l"t respondent whereafter impugned order dated 3O.O7.2O2L was passed cancelling the GST registration of the petitioner
Aggrieved by such cancellation, petitioner \ preferred appeal before the 2"d respondent. However, by the order-in-appeal dated 15.I2.2022, 2"d respondent rejected the appeal on the ground of limitation. 2
HCI& N'TR,I W.l'.No.7008 of 2023 6. lssue raised in this writ petition is no longer res integra.
In M/s. Chenna Krishnama Charyulu Karampudi v. Additional Commissioner Appealst, a division bench of this Court held as follows:
"
On a qui:n- by the Courl as to why petitioner has not erppro:rchcd 1hc Goods :rncl Services Tax Tribunal (GST Tribunal) under scction 112 of thc Centrzrl Goods and Scnices Ta-r Act, 20 1 7 (briefly, 'CGST Act' hereinafter), learncd counsel for thc petitioner submits rhrrt till date no GST Tril;un:rl hzrs been constitutcd. 6, We have perused the order dated 19-4-2022. Thrs rs an order passecl by the first appellate authority under section 107(1) of the CGST Act. As per sub-section (1) of section 107 of the CGST Act, limitation for filing appeal is three months from the date of communication of the ordei appealed against. Under sub-section (4) of section 1O7 of the CGST Act, the appellate authority may a1[ow the appeal to be presented within a further period of one month, provided suffrcient cause is shown by the appellant.
Though the lower appellate authority may be right in holding that while it may allow hling of an appeal beyond the limitation of three months for a further period of one month, therefore, by e.rtension of limitation beyond the extended 3 t (2022) I42 taxmann.com 7O (Telanganal ,{t I I
17C.J & N'I'RJ W.P.No.7OOu of 2023 period of one montll delay beyond the extcnded pct iod of one month cannot be condoned, we are of the view thztt such a stand taken by respondent No. 1 may advcrsely aJfect the petitioner. This is more so because respondent No 2 had suo mofu cancelled the GST registratiorr of the petitioner on the ground of non-filing of returns and as GST Tribunal has not been constituted under section 109 ofthe CGST Act, petitioner would be left without anY remedY.
We further find tlat Lhe issue pertains to cancellation of GST registration of the petitioner. In thc lacts and circumstances of the case, it would be just and propcr if thc cntire matter is remanded back to respondent No.2 to reconsider the case of the petitioner and thercafter to pass appropriate order in accordance with law.
In the light of the above and wrthout expressing any opinron on merit, we remand the matter back to the hle of respondent No.2 to consider the grievalce expressed by the petitioner aga.inst cancellation of GST registration and thereaJter pass an appropriate order in accordance with law. Needless to say, when the respondent No.2 hears the matter on rcmand, petitioner shall submit all the returns as per the statute.
Writ petition is accordingly disposed of.'
Following the above, impugned orders dated ll.O5.2O2l arrd 15.12.2022 are hereby set aside. Matter is remzrnded back to the 1"t respondent who shall pass a fresh order in accordance with law after giving an opportunity of 4 -
HCJ & NTRJ W.P.No.7OO8 of 2O23 hearing to the petitioner. ln the meanwhile, it wouid be open to the petitioner to furnish the returns, if aly, as provided under the statute.
Writ Petition is accordingly allowed. However, there shall be no order as to costs
Miscellaneous applications pending, if any, in this Writ Petition shall stand closed 5 . P. PADMANABHA REDDY ASSISTANT REGISTRAR //// SEC OFFICER To, 'U:;5eFi;.#:A1""t"ejBij]'::'r-Ei*Y,"j',i"u?"1$'lE3lgii';'#f X:A'il9 'it3.3lit'3:mi?",:?t{?-,ff iE.suiirfl :H:lils'"*R:L('^ppearsrr) E;.#;tbilh Hrderabad -PlN - 500 004 - .. lffi*[uffii;l,ffi+.w't*mlltxfii*f]r;
Two CD coPies BM GJP ,l i i i i i i I i I i i l I
HIGH COURT DATED:1410312023 ORDER WP.No.7008 of 2023 ALLOWING THE WRIT PETITION WITHOUT COSTS t A r9\rv \\ .$ $\" + .t J o .,S i l-.{ r1_.
Reproduced from the public record of the Telangana High Court. Verify against the court's own copy before relying on it. Income tax judgments are on bharattax.net.