M/S Sai Constructions vs. The Union Of INDIA

CWJC/3964/2024HC PatnaGSTCNR BRHC01017216202404 March 2024Bench: MR. JUSTICE HARISH KUMAR,THE CHIEF JUSTICE-3 pages

AI SummaryDismissed

Facts

The petitioner, M/s Sai Constructions, a sole proprietorship firm, approached the High Court challenging the cancellation of its GST registration dated 12.05.2023. This cancellation followed a show-cause notice issued on 14.01.2023, to which the petitioner did not reply. The petitioner also failed to file an appeal against the cancellation order, which was a available remedy. The judgment notes that an appeal should have been filed by 12.08.2023, with a provision for condonation of delay up to one month thereafter. Furthermore, the petitioner did not avail of an Amnesty Scheme, introduced by Circular No. 3 of 2023, which allowed restoration of cancelled registrations upon payment of dues between 31.03.2023 and 31.08.2023. The petitioner did not controvert the allegation that no returns were filed for the prescribed periods.

Held

The Court held that the petitioner is not entitled to challenge the cancellation of GST registration through a writ petition. The reasoning is based on the petitioner's failure to avail the statutory appellate remedy provided under Section 107(4) of the BGST Act, which includes a provision for condonation of delay. The petitioner also failed to utilize the Amnesty Scheme offered by Circular No. 3 of 2023. The Court emphasized that the law favors the diligent and not the indolent, and the delay on the petitioner's part stands against them. The Court declined to exercise its discretionary writ jurisdiction. The operative direction is the dismissal of the writ petition.

Key Issues

1. Whether the petitioner is entitled to challenge the cancellation of GST registration through a writ petition when statutory appellate remedies, including provisions for condonation of delay, were available but not availed, and a subsequent Amnesty Scheme was also not utilized? (Section 107(4) of the BGST Act and Circular No. 3 of 2023). The petitioner's argument is implicitly that the writ jurisdiction should be exercised due to the circumstances, despite the non-availment of statutory remedies. The respondents' argument, as inferred from the court's reasoning, is that the petitioner has been indolent and has failed to pursue available legal avenues, thereby forfeiting their right to seek relief from the High Court. The court also notes the petitioner does not controvert the allegation of non-filing of returns.

Sections Cited

Section 107(4)

AI-generated summary — verify with the full judgment below

Cause title — parties, addresses and appearances

IN THE HIGH COURT OF JUDICATURE AT PATNA Civil Writ Jurisdiction Case No.3964 of 2024 ====================================================== M/S Sai Constructions (A Sole Proprietorship Firm), Having its Registered Office at Police Colony, B/120, Gardanibagh, Patna through its sole proprietor Rinku Devi, Female aged about 38 years, w/o Jitendra Kumar resident of village Patut, PO and PS Rani Talab Kanpa, Bikram, District- Patna. ... ... Petitioner/s Versus 1. The Union of India through the Secretary, Ministry of Finance, Department of Revenue, having its office at Room No.46, North Block, P.O. and P.S. North Block, New Delhi-110001. 2. Joint Commissioner of State Tax, Patna South Circle. 3. Assistant Commissioner of State Tax, Patna South Circle, Patna. 4. Additional Commissioner State Tax, Patna South Patna. ... ... Respondent/s ====================================================== Appearance : For the Petitioner/s : Mr.Uday Prasad Singh, Advocate For the Union of India : Dr. K.N. Singh, ASG Mr. Anshuman Singh, Sr. SC, CGST & CX Mr. Devansh Shankar Singh, Advocate For the State : Mr. Vivek Prasad, G.P.-7 ====================================================== CORAM: HONOURABLE THE CHIEF JUSTICE and HONOURABLE MR. JUSTICE HARISH KUMAR

ORAL JUDGMENT (Per: HONOURABLE THE CHIEF JUSTICE) Date : 04-03-2024 The petitioner is before this Court challenging the cancellation of registration dated 12.05.2023 at Annexure-P-2, before which a show-cause notice was issued on 14.01.2023, which was not replied to. An appeal is provided from Annexure- P-2, which was also not availed of.

In the BGST Act, u/s 107(4) there is a provision for condonation of delay, if the appeal is filed delayed, within one 2/3 month of expiry of limitation. The appeal ought to have been filed on or before 12.08.2023 or before 12.09.2023 with a delay condonation application.

The petitioner has not availed such remedy and at this point of time, cannot seek to avail the appellate remedy for reason of the limitation period having expired long prior.

Further, the Government had come out with an Amnesty Scheme by Circular No. 3 of 2023 by which the registered dealers, whose registrations were cancelled, were permitted to restore their registration, on payment of all dues, between 31.03.2023 to 31.08.2023. The petitioner did not avail of such remedy also.

The petitioner being not a registered dealer, there was no monitoring of his activities by the Department in the intervening period. There is no way to ascertain as to whether there was any transaction carried out during the said period. It is also a fact that the petitioner has neither availed of the appellate remedy nor the Amnesty Scheme which was made applicable. The petitioner also does not in the memorandum of writ petition controvert the allegation in the show cause notice that no returns were filed for the prescribed periods.

The law favours the diligent and not the indolent.

3/3 The delay stands against the petitioner.

Hence, we dismiss the writ petition; declining exercise of discretion.

P.K.P./- (K. Vinod Chandran, CJ) (Harish Kumar, J) AFR/NAFR CAV DATE Uploading Date 05.03.2024 Transmission Date

Reproduced from the public record of the Patna High Court. Verify against the court's own copy before relying on it. Income tax judgments are on bharattax.net.