M/S. Southern Enterprises vs. Appellate Joint Commissioner (St)
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The petitioner, M/s. Southern Enterprises, a proprietorship firm, had its GST registration cancelled by the Assistant Commissioner (ST) (Respondent No. 3) via an order dated 10.12.2020, following a show cause notice issued by the Deputy State Tax Officer (Respondent No. 4) on 09.11.2020 for continuous non-filing of GST returns for six months. The petitioner's reply was deemed unsatisfactory. An appeal filed before the Appellate Joint Commissioner (ST) (Respondent No. 1) was dismissed on 11.01.2021, primarily on the grounds that it was filed beyond the period of limitation and the extended period of limitation. The petitioner then filed a writ petition before the High Court, as no GST Tribunal had been constituted in Telangana.
Held
The Court held that the issue of cancellation of GST registration and the subsequent dismissal of appeal on limitation grounds, in the absence of a functional GST Tribunal, is no longer res integra. Following its own previous decisions, notably in M/s. Chenna Krishnama Charyulu Karampudi v. Additional Commissioner (Appeals-1), the Court found it just and proper to remand the entire matter back to the primary authority. The Court set aside the order of cancellation dated 10.12.2020 passed by Respondent No. 3 and the appellate order dated 11.01.2021 passed by Respondent No. 1. The matter was remanded to Respondent No. 4 (Deputy State Tax Officer) for a fresh decision after affording the petitioner a reasonable opportunity of hearing. The petitioner was also permitted to submit the pending GST returns during the remand proceedings. The Court explicitly stated it was not expressing any opinion on the merits of the case.
Key Issues
1. Whether the dismissal of the petitioner's appeal by the Appellate Joint Commissioner (Respondent No. 1) on the grounds of limitation, without considering the merits, is sustainable, given the absence of a GST Tribunal in Telangana? (Section 107, Section 112 of the CGST Act, 2017). The petitioner argued that the dismissal of the appeal on technical grounds of limitation, especially when no GST Tribunal is functional, would leave them without a remedy and that the matter should be remanded for reconsideration on merits. The respondents contended that the appeal was indeed filed beyond the prescribed limitation period and the extended period, and thus, the appellate authority was justified in dismissing it.
Sections Cited
Section 107, Section 112
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Cause title — parties, addresses and appearances
The Court made the following ORDER I
N'BI,E IEI.' 't'I AND THT] HON'BLE SRI IUSTI CIi N.'I'lJKARA}\{II \V.P.No.2471 of 2023 ORDER, fPr'1l" / lot'b/t.t/r {.:turl Jrditr Iln Bl'4ytn) Heard Mr. MNaga DeepaL learned counsel for the petitioner and Mr. L.Venkateshwar Rao, leamed Standing Counsel, Commercial Tax representing the respondents.
Petitioner is a proprietorship firm engaged in the business of sale and offering seruice ol air conditioners. Following introduction of Goods and Services Tax (GST) regime, petitioner got itself registered under the Crntral Goods and Services Tax Act, 2017 (bnefly 'the Act' hereinafter) zz7lr GSTIN 3 6O\TEPM0349F2Z4. 3. A show cause notice dated 09.11.2020 was issued byrespondent No.4 to the petitioner to show cause as to viry petitioner's GST regisration should not be cancelled for non-filing of GST retums for a continuous period of six months. It appears that in response to the aforesaid show cause notice dated 09.11,.2020, petitioner had submitted reply dated 19.L1.2020. Howeveq reply of the petitioner was found to 2 be not satisfactory whereafter, order dated 10.12.2020 was passed by 4. Aggrieved by the same, petitioner preferred appeal before respondent No.l under Section 107 of the Act. However, on the ground that the appeal was filed not only beycnd the period of limitation but also beyond the extended period of limitation, the sanre was dismissed by respondent No.l lide the order dated fi.aL2aL.
Since no Tribunal has been constituted in the State of Telangana in terms of Section Ll2 of the Act, the present writ petition has been filed.
Issue raised in this writ petition is no longer res integra. In M/s. Chenna Krishnama Charyulu Karampudi v. Additional Commissioner (Appeals-1)t, which has been follovred in subsequent decisions, this Coun had remanded the matter back to the file of the primary authority to reconsider and pass appropriate order after giving opponunityof hearing to the petitioner. It was held as follors: 'We have perused the order dated 19.04.2022. This is an order passed by the fint appellate authoriry under t zozze) r''4lr ez I respondent No.4 cancelling the GST registration of the petitioner.
t t Section 107(1) oi the CGST Acl tu per subsection (1) of Section 107 of the CGST Act, limitation fbr filing appeal is three months from the date of communication of the order appealed against. Under sub-section (4) of Secdon 1OZ of the CGST Act, the appellate authoriry may allow the appeal to be presented within a funher period of one rnonth, provided sufficient cause is shown by the appellant. Though the lower appellate authority may be right in holding that while it may allow filing of an appeal beyond the limitation of three months for a funher period of one month, therefore, by extension of limitation beyrcnd the extended period of one month delay beyond the extended period of one month cannot be condoned, we are of the view that such a stand taken by respondent No.i may advenely affect the petitioner. This is more so becarse respondent No.2 had .r 0 mot cancelled the GST registration of the petitioner on the ground of non-filing of retums and as GST Tribunal has not been constituted under Section 109 of the CGST Act, petitioner would be left vrithout any remedy. \We further find that the issue pemins to cancellation of GST registration of the petitioner. In the facts and circumstances of the case, it would be just and proper if the entire matter is remanded back to respondent No.2 to reconsider the case of the petitioner and thereafter to pass appropriate order in accordance with law. In the light of the above and without expressing any opinion on merit, we remand the matter back to the file of respondent No.2 to consider the grievance expressed by the t { I I
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Thus, following the above decision, we set aside the order dated 10.L2.2020 passed byrespondent No.4 as well as the order dated 11.01.2023 passed by respondent No.1 and remand the matter back to respondent No.4 for a fresh decision in accordance with law. Respondent No.4 shall afford a reasonable opportuniry of hearing to the petitioner while passing the fresh order on remand. In the remand proceedings, it will be operi to the petitioner to submit the GST retunN as Per the statute.
This disposes of the writ petition. No costs. As a sequel, miscellaneous petitions, pending if any, sta24 closed. _ To 7 a s.A BS 8rsk,
J 4.t 6. .MOHD SANAULLAH ANSARI //// ASSTSTANT REGISTRAR (i, SECTION OFFICER Iffi#8:1"" Joint commissioner (sr), Hvderabad Rurat Division, The Joint Commissioner (ST). S_aroonagar Division, Hyderabad. I he Assisra nt com missioher lsrl . nriEro,r,ii-gr; i i d;":;, Hyde raba d I he Deputy State Tax Officer 9n" 9i to''9 s-L nr irxb;'iEi #^it: XJi#j,:',8 rt t," ra b a d' l&r"StosRtL.vENKArESHWAi'RA-dlbtibilonaruERctAlrAX Two CD Cooies One spare iopy petitioner against cancellation of GST registration and thereafter pass an appropriate order in accordance with law. Needless to say, when the respondent No.2 hears the maner on remand, petitioner shall submit all the returns as pe r the statue. I I
HIGH COURT DATED:31 10112023 ORDER WP.No.2471 of 2023 DISPOSING OF THE W.P WITHOUT COSTS. tO CrTrs 1 BE f, 2 4 tll ?i,'l ) ,i I l Bttrr t6lLl>z
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.