M/S Kashish Infra Energy Power Azadpur vs. State Of U.P. And 2 Others
Held
The Court held that the show cause notice dated 2.1.2021 was not a valid show cause notice in the eyes of law. This was because the notice failed to specify the period within which the petitioner was required to furnish a reply and crucially, did not mention any appointed date and time for personal hearing. The Court found that this omission was not rebutted by the respondents in their counter affidavit. The Court emphasized that the proviso to sub-section (2) of Section 30 of the Act mandates that an application for revocation of cancellation of registration shall not be rejected unless the applicant has been given an opportunity of being heard. Since the show cause notice did not provide a proper opportunity for hearing, this mandatory requirement was not complied with. Consequently, the subsequent order dated 30.1.2021, rejecting the petitioner's application for revocation, was deemed questionable. The appellate order dated 24.3.2021, which dismissed the appeal without considering this procedural flaw, was set aside. The case was remitted to the appellate authority for a fresh decision in accordance with the law.
Facts
The petitioner, M/s Kashish Infra Energy Power Azadpur, registered under the U.P. Goods and Services Tax Act, 2017, had its GST registration cancelled on 31.8.2019 by the Assistant Commissioner, Commercial Tax, Lalitpur, for non-commencement of business within six months. Subsequently, the petitioner applied for revocation of this cancellation on 21.12.2020. A show cause notice dated 2.1.2021 was issued for rejection of this application, citing that it was not filed within the time prescribed by the Act. The petitioner did not file a reply. The Assistant Commissioner rejected the revocation application on 30.1.2021. An appeal was filed before the Additional Commissioner, Grade-2 (Appeals), Jhansi, which was dismissed on 24.3.2021. The petitioner then filed a writ petition before the High Court challenging both the order of rejection of revocation and the appellate order.
Key Issues
1. Whether the show cause notice dated 2.1.2021, issued for the rejection of the petitioner's application for revocation of GST registration cancellation, was legally valid, considering it did not specify a time for reply or a date/time for personal hearing, and thus complied with the mandate of Section 30(2) of the U.P. Goods and Services Tax Act, 2017, and Rule 23 of the relevant Rules? Petitioner's contention: The petitioner argued that the show cause notice dated 2.1.2021 was invalid as it failed to specify the number of days for filing a reply and did not mention any date or time for personal hearing, thereby violating the mandatory requirement of providing an opportunity of being heard as stipulated in the proviso to Section 30(2) of the Act and the prescribed format under Rule 23. They relied on the fact that this deficiency was not rebutted by the respondents. Respondent's contention: The respondents, through the appellate order, contended that the application for revocation was filed after 30 days, violating Section 30 and Rule 23, and that the proper authority could not extend this time. The appellate authority stated it had the right only to examine legal and factual aspects and found no factual error or disregard of statutory powers in the original order.
Sections Cited
Section 30, Rule 23
AI-generated summary — verify with the full judgment below
Court No. - 38 Case :- WRIT TAX No. - 367 of 2021 Petitioner :- M/S Kashish Infra Energy Power Azadpur Respondent :- State Of U.P. And 2 Others Counsel for Petitioner :- Pranjal Shukla Counsel for Respondent :- C.S.C. Hon'ble Jayant Banerji,J. Heard learned counsel for the petitioner and Sri Jagdish Mishra, learned Standing Counsel for the respondents. This writ petition has been filed with the following prayers: "(i) issue a writ or direction or pass an order in the nature of certiorari quashing the impugned order dated 19.8.2019 passed by the Assistant Commissioner, Commercial Tax, Division-2, Lallitpur i.e. respondent no. 3 (Annexure- no. 2 to the writ petition)as well as impugned order dated 24.3.2021 passed in Appeal No. AD090221005109/21 by the Additional Commissioner, Grade-2 (Appeals), Commercial Tax, Jhansi i.e. respondent no. 2 (Annexure no. 8 to the writ petition). (ii) issue a writ or direction or pass an order in the nature of mandamus directing the respondents not to take any coercive action against the petitioner pursuant to issuance of impugned order."
A perusal of the averments in the writ petition reveal that the petitioner was duly registered under the U.P. Go
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