Nithya Constructions vs. The Union Of INDIA

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WP/27449/2022HC TelanganaGSTCNR HBHC01038752202230 June 2022Bench: SUREPALLI NANDA,UJJAL BHUYAN7 pages
For Petitioner: SRI' RAJA RAO ALGUNOORI
AI SummaryRemanded

Facts

The petitioner, Nithya Constructions, had its GST registration cancelled suo motu by the Superintendent, Tax Officer (Respondent No. 3) on July 22, 2019, due to non-filing of returns for six months. The petitioner filed an appeal before the Additional Commissioner (Appeals) (Respondent No. 2). The appellate authority dismissed the appeal on February 25, 2022, holding that it was filed beyond the extended period of limitation under Section 107(1) of the Central Goods and Services Tax Act, 2017. The petitioner then filed a writ petition before the High Court challenging the appellate order and seeking directions to file GST returns for the years 2019-2020, 2020-2021, and 2021-2022.

Held

The High Court found that the issue raised in the writ petition was covered by a previous decision of the same Court in W.P. No. 27071 of 2022. In that case, the Court acknowledged that while the appellate authority might be correct in holding that an appeal beyond the extended period of one month cannot be condoned, such a stand could adversely affect the petitioner, especially since the GST Tribunal had not yet been constituted. The Court reasoned that without the Tribunal, the petitioner would be left without a remedy. Therefore, in the facts and circumstances, the Court deemed it just and proper to remand the entire matter back to the original authority (Respondent No. 3) to reconsider the petitioner's case and pass an appropriate order in accordance with the law. The Court set aside the order of cancellation and the appellate order, directing that upon remand, the petitioner shall submit all returns as per the statute. The Court made no opinion on the merits of the case.

Key Issues

1. Whether the appeal filed by the petitioner before the appellate authority was beyond the extended period of limitation prescribed under Section 107(1) of the Central Goods and Services Tax Act, 2017, and if so, whether the appellate authority was justified in dismissing the appeal on this ground? Petitioner's Contention: The petitioner argued that the cancellation of registration was illegal, arbitrary, and violative of natural justice and constitutional rights. They sought to file GST returns for the period in question. Revenue's Contention: The revenue, through the appellate authority's order, contended that the appeal was filed beyond the permissible extended period of limitation under Section 107(1) of the CGST Act, thus warranting dismissal.

Sections Cited

Section 107(1), Section 109, Section 112

AI-generated summary — verify with the full judgment below

Cause title — parties, addresses and appearances
Between: AND Nithya Constructions. Ren,,ly .manlging authorized partner Kandula Venkat Narashimha Reddv S/o ' Kairdula Sij;ir;:"ii#;i. nseo about 42 vears ff33 ; ?["]!sl I i Hl o,!'i,.,] I : - b r1 02 r ; G; "G J ;;:," vN ea r b;i" sl+.# Ffv: il ...PETITIONER 1 The Union of lndia. Reo bv its Secretary, lVinistry of Finance lncome tax Department, New Delhi. The Additional Commissroner (ApOgal_l), Customs Central Tax Commissioner office. 7th ftoor. GSr Bhavan, L E:Sadit; Ro"riiiv'J"ruoro. The Srjperintendent, Tax Officer, Customs Goods and central Tax uepartment, Hyderabad. 2 3 .,.RESPONDENTS Petition under Articre 226 0f the constitution of rndia praying that in the circumstances stated in the affidavit fired therewith, the High court may be pleased to issue a writ order, or direction more particurarry one in the nature of writ mandamus by decraring the order dated 25-02-2022 passed by the 2nd respondent in appear no HyD GST RRC AppL-101-21-22-GST in confirming the order dated 29-04-2019 of the 3rd respondent in cancering the registration certificate No. 36AANFN1662Lrzu of petitioner registration is iilegar, arbitrary and violation of principres of Naturar Justice and contrary to raw apart from violation of Articres 14, 19(i), (g) and 21 of constitution of rndia and consequenry set aside the order dated 2s-02-2022 passed by the 2nd respondent in appear no HYD GST RRC-A''L-i 0 1 -21-22-csr in confirming the order dated 29-04-2019 HIGH COURT FOR THE SI4IE.OF TELANGANA AT HYDERABAD (Special Originat Jurisdictioi)' " THURSDAY,THE THIRTIETH DAY OF JUNE TWO THOUSAND AND TWENTY TWO PRESENT THE HONOURABLE THE CHIE_F JUSTICE UJJAL BHUYAN THE HoNoURABLE MRS:U3,,.. .,*.,ALLI NANDA WRIT pETtTtON NO: 27449 OF 2022 of the 3rd respondent 36AANFNl662LlZU of petitioner registration IANO:1 OF 2022 IA NO:2 OF 2022 in cancelling the registration certificate No' Petition under Section 151 CPC praying that in the circumstances stated in the affidavit filed in support of the petition, the High court may be pleased To suspend the order dated 25-02'2022 passed by the 2nd respondent in appeal no HYD GST RRC-APPL-10 1- 21-22-GSI in confirming the order dated 29-04-2019 of the 3rd respondent in cancelling the registration certificate No' 36AANFNr 662LlZU of petitioner registration, pending disposal of the writ petition. Petition under Section 151 CPC praying that in the circumstances stated in the affidavit filed in support of the petition' the High Court may be pleased To direct the respondent 3 to allow the petitioner to file the GST returns for the years 20'1 9-20 20,2020-2021'2021 -2022' Counsel for the Petitioner : SRI' RAJA RAO ALGUNOORI Counsel forthe Respondent No'1 : Mr' B MUKHARJEE FOR NAMAVARAPU nllesnwnn RAo(AssGl) Gounsel for the Respondent Nos' 2 & 3 : SRI B NARASIMHA' SC FOR GOODS AND SERVICES(GST)

The Court made the following : ORDER

ORDER: (Per the Han'ble the Chlef Justice lljjal Bhugan) Heard Mr. Raja Rao Algunoori, learned counsel for the petitioner; Mr. B.Mukharjee, learned counsei for respondent No.1 and Mr. B. Narasimha Sarma, learned Standing Counsel for Goods and Services Tax (GST)'

2.

Petitioner's registration was cancelled suo motu by respondent No'3 on 22'07'2}lg on the ground of non-filing of returns for six months' Appeal filed by the petitioner was dismissed by respondent No'2 as the appellate vide the impugned order dated 25'O2'2022 on the THE HON,BLE THE CHIEF JUSTICE UJJAL tsHUYAN AND THE HON'BLE MRS JUSTICE SUREPALLI NANDA WRIT PETITION No.27449 ot 2022 authority ground that the appeal was iiled beyond the extended period of iimitation under Sectron Goods and Services Tax Act' 2017' i07(1) of the Central

3.

We find that issue raised in this writ petition rs covered bY a decision of this Court dated 27 'O6'2Q22 in Krishnama W.P.No.27071 of 2022 (M/s' Chenna

HCJ (t S\7 ll; P ,\0.27J19 ol1022 KaramPudi v Additional Commissioner (ApPeals-I))'

4.

Reievant portion of the aforesaid order dated 27 .06.2022 is extracted hereunder:- "

3.

Petitioner is a propietorship firm engaged in the business of carrying out aorks controct seruices lt is registered tuith the Goods and Seruices Tax (GSI) authoitiesintheStateofTeLangana.Bgtl.teorderdated 22.01.2O1g, respondent No'2 concelled' registration of the petitioner under GST' Against thb order of cancellation' petitioner preferred appeol before respondent No'1 assaiLing the tegalitg ond uatiditg of the order dated 22.01.2019. Bg the order dated 19.04.2022, respondent No.l as the appetlate authonty hos held that th"e oppeal u.tas filed beyond the peiod of ertended limitation' Accordinglg, the dppeal uLas dismissed.

4.

Hence, tlrc wit petitlon.

5.

On a query bg the Court as to uhA petitioner has not approached tL-Le Goods and Seruices Tax Tibunal (GST Tibunal) under Section 112 of the Central Goods ond Seruices Tax Act, 2017 (bneflg, 'CGST Act' hereinafi.er), leanted counsel for the petitioner submtts that till date no GST Tibunal has been constituted.

6.

We haue perused the order dated 19.04.2022. This is an order passed bg the first appetlate authoitA under Section 1O7(1) of the CGST Act. As per subsection (1) of Section 107 of the CGST Ac6 ti.mitation for fiting -l Charyulu

HCJ & SNJ 11/.P.No.27419 of2022 appeol is three months from the date of communication of the order appeo,led o.gainst. Under subsection p) of Section 107 of the CGST Act, the appellate authaitA maa allotu the appeal to be presented u-tithin a further peiod of one month prouided sulrtcient cause is shpwn bg the appellant.

7.

Though the lower appellate authontg maA be nght in hotding that while it mag allow filing of an appeal begond the timitation of three months for a further peiod of one month, therefore, by exlension of timitotion begond the extended peiod of one month detag beyond the ertended. period of one month cannot be condoned, ue are of the uiew that such a stand taken bg respondent No.1 may aduerselg offect the petitioner. Thts is more so because respondent No.2 Lud suo motu cancelled the GST registration of the petitioner on the ground of non- fiting of retums and- as GS? Tibunal has not been constituted und.er Section 109 of the CGST Act' petitioner would be lefl tt-tithout ang remedg'

8.

We further Jind that the issue pertain's to cancellation of GST registratton of the petitioner' In the facts and circumstances of the case' it woutd" be just and proper if tl'te entire fiLatter is remanded back to respondent No.2 to reconsid'er the case of the petitioner and thereafter to pass appropiate order in accordance withlaw. J

9.

In the light of the aboue and f ithout expresstng any opinion on ment' ue remand the matter back. to the Jil; .f respondent No'2 to consider the gneuance expressed bA the petitioner against cancellation of GST re:,gistration and thereafter pass an appropriate order tn

5.

Accordingly and in the light of the above' we set aside the order d.ated 22.07.2019 as well as the order dated 25.02.2022 and remand the matter back to respondent No.3 to consider the grievance expressed by the petitioner against cancellation of GST registration and thereafter pass an appropriate order in accordance with law' Needless to say, when respondent No.3 hears the matter on remand, petitioner shall submit all the returns as per the statute'

6.

Writ petition is accordingiy disposed of. Miscelianeous applications pending, if any, sha1l owev ere shall be no order as to costs. .N.CHANDRA SEKHAR RAO ASSISTANT REGISTRAR //// Ctl SECTION OFFICER To,

1.

The Secretary, Ministry of Finance lncome tax Department, Union of lndia, New Delhi.

2.

The Additional Commissioner (Appeal-l), Customs Central Tax Commissioner office, 7th floor, GST Bhavan, L.B. Stadium Road, Hyderabad.

3.

The Superintendent, Tax Officer, Customs Goods and central Tax Department, Hyderabad.

4.

One CC to SRl. RAJA RAO ALGUNOORT, Advocate. tOpUCl

5.

One CC to SRl. NAMAVARAPU RAJESHWAR RAO(ASSG|)Advocate loPUcl

6.

One CC to SRI B NARASIMHA SARMA, SC FOR GOODS AND SERVICES(cST),Advocate[OPUC]

7.

Two CD Copies

8.

One Spare Copy sB ,tv__- + 7 S accordance tt'tith lattt, Needless to sag' uhen the respond"ent No.2 hears the matter on remand' petitioner shall submit all the returns os per the statute'" \\

HIGH COURT DATED:3010612022 ORDER (-1 WP.No.27449 of 2022 ff,i?is?,T 3oo5rlr. wR Ir P Eilfl o N [\4 4- 6h lz,- 7,,7'u":i*}" //ko' ''*', ({ rE JUL zrzl \lu- ;/t \'.n"tgz ( ?*r \t/

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.