Powernet INDIA Private Limited vs. Union Of INDIA

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WA/1077/2021HC KeralaGSTCNR KLHC01045704202127 August 2021Bench: HONOURABLE MR.JUSTICE S.V.BHATTI,HONOURABLE MR.JUSTICE VIJU ABRAHAM5 pages
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Facts

The appellant, Powernet India Private Limited, challenged certain orders (Exts. P8 and P9) and sought directions for the expeditious consideration of its representation concerning a notification (Ext. P7) dated June 1, 2021. This notification provided a waiver of late fees for registered persons who failed to furnish GSTR-3B returns for July 2017 to April 2021, if filed between June 1, 2021, and August 31, 2021. The appellant intended to first secure the recall of its cancelled registration and then avail the benefits of Ext. P7. The learned Single Judge declined to exercise writ jurisdiction, deeming the writ petition misconceived due to the availability of an appellate remedy against the impugned order.

Held

The High Court upheld the learned Single Judge's decision not to exercise discretionary writ jurisdiction, finding it to be justified on the ground that the appellant possessed an alternative remedy of appeal against the order impugned in the writ petition. The Court acknowledged the appellant's intention to get the cancellation of registration revoked and to apply for settlement under Ext. P7. To meet the ends of justice and considering the circumstances, the Court granted liberty to the appellant to avail the options open under Ext. P7. The Standing Counsel for the respondents was instructed to immediately intimate the relevant authorities about this liberty. Furthermore, the appellant was granted liberty to file an appeal along with an application to condone the delay against the order of cancellation of registration before the Appellate Authority, which was directed to take necessary action in accordance with law. The writ appeal was disposed of with these directions. The Court did not expressly leave any issue undecided.

Key Issues

1. Whether the learned Single Judge was justified in declining to exercise writ jurisdiction on the ground that the appellant had an alternative remedy of appeal against the order impugned in the writ petition? Petitioner's Arguments: The appellant contended that the scheme under Ext. P7 notification envisages multiple contingencies, including the non-filing of periodical returns. The appellant sought to first obtain the recall of its cancelled registration and then utilize the option provided by Ext. P7. The appellant argued that the writ jurisdiction was invoked due to specific circumstances and that it was not entirely precluded from availing the window opened by Ext. P7. Revenue's Arguments: The judgment does not explicitly record arguments made by the revenue or state. However, the learned Single Judge's reasoning, which was upheld by the appellate court, suggests that the revenue likely argued for the availability of the statutory appeal remedy.

Sections Cited

Section 47

AI-generated summary — verify with the full judgment below

Cause title — parties, addresses and appearances
IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR.JUSTICE S.V.BHATTI & THE HONOURABLE MR.JUSTICE VIJU ABRAHAM FRIDAY, THE 27TH DAY OF AUGUST 2021 / 5TH BHADRA, 1943 WA NO. 1077 OF 2021 AGAINST THE ORDER/JUDGMENT IN WP(C) 17123/2021 OF HIGH COURT OF KERALA, ERNAKULAM APPELLANT: POWERNET INDIA PRIVATE LIMITED KARUKAPPILLIL, OLIYAPURAMP.O, KOOTHATTUKULAM, ERNAKULAM 686 662 REPRESENTED BY ITS DIRECTOR BY ADV LATHEESH SEBASTIAN RESPONDENTS: 1 UNION OF INDIA REPRESENTED BY THE SECRETARY MINISTRY OF FINANCE, DEPARTMENT OF REVENUE, ROOM NO. 46, NORTH BLOCK, NEW DELHI 110 001 2 THE CENTRAL BOARD OF INDIRECT TAXES AND CUSTOMS MINISTRY OF FINANCE, DEPARTMENT OF REVENUE, NORTH BLOCK, NEW DELHI 110 001 3 THE COMMISSIONER CENTRAL EXCISE AND CUSTOMS,C.R BUILDINGS, I.S PRESS ROAD, COCHIN 682 018, ERNAKULAM DISTRICT. 4 THE ASSISTANT COMMISSIONER CENTRAL EXCISE AND CUSTOMS, TECHNICAL SECTION, C.R BUILDINGS, I.S PRESS ROAD, COCHIN 682 018, ERNAKULAM DISTRICT. 5 THE ASSISTANT COMMISSIONER, CENTRAL EXCISE AND CUSTOMS, PERUMBAVOOR DIVISION, PERUMBAVOOR, ERNAKULAM DISTRICT-683 542 6 THE SUPERINTENDENT OF CENTRAL TAX AND CENTRAL EXCISE, KOLENCHERY RANGE, M.M JUNCTION, KOLENCHERY, ERNAKULAM DISTRICT 682 311 TANUJA ROSHAN CGC THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 27.08.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WA NO. 1077 OF 2021 -2-

J U D G M E N T S.V.Bhatti,J. Heard Adv.Latheesh Sebastian and Adv.Thanuja Roshan for parties.

2.

Writ petitioner is the appellant. The appellant challenged Exts.P8 and P9 and also, prayed for a direction for expeditious consideration of representation made by the appellant before the expiry of time stipulated in Ext.P7 notification. The appellant has stated a few circumstances both for invoking the writ juri iction and also that, as on date, the appellant is not completely shut out from availing the window opened through Ext.P7 notification dated 01.06.2021. He draws our attention to the following portion of Ext.P7 notification. “Provided also that for the registered persons who failed to furnish the return in FORM GSTR-3B for the months/quarter of July, 2017 to April, 2021, by the due date but furnish the said return between the period from the 1st

WA NO. 1077 OF 2021 -3- day of June, 2021 to the 31st day of August, 2021, the total amount of late fee under section 47 of the said Act, shall stand waived which is in excess of five hundred rupees:”

3.

According to Adv.Latheesh Sebastian, the scheme envisages more than one contingency including the non-filing of periodical returns by a registered dealer. The endeavour of appellant is to firstly, secure recall of cancellation of registration under CGST Act and avail the option provided by Ext.P7 notification.

4.

We have taken note of the submissions.

5.

The learned Single Judge was pursuaded, in our view rightly not to exercise his discretionary juri iction on the ground that the appellant had the remedy of appeal against the order impugned in the writ petition and the writ remedy is misconceived. Prima facie, we are of the view that both from the circumstances of the case and also the cogent reasons given by WA NO. 1077 OF 2021 -4- the learned Single Judge, the writ appeal does not merit interference with the juri iction exercised by the learned Single Judge. This observation by us, ought not to be understood as shutting out the other options available to the appellant in this behalf. The appellant, as noted above, intends to get the cancellation of registration revoked and also apply for settlement in terms of Ext.P7 notification. For the said purpose, to meet the ends of justice and in the fitness of the circumstances of this case, we observe as under: a) The appellant is given liberty to avail the options open under Ext.P7 notification. The Standing Counsel appearing for respondents Nos.2 to 6 is instructed to immediately intimate respondents Nos.2 to 6 about the liberty granted by this Court immediately. b) Appellant is given the liberty to file appeal along

WA NO. 1077 OF 2021 -5- with the application to condone the delay against the order of the cancellation of registration before the Appellate Authority. The Appellate Authority does the needful in accordance with law. The writ appeal stands disposed of as indicated above. No order as to costs. S.V.BHATTI JUDGE VIJU ABRAHAM JUDGE JS

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