M/S Cvk Infrastructure PVT LTD vs. The Additional Commissioner (Appeals-Ii)

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WP/22114/2023HC TelanganaGSTCNR HBHC01040367202317 August 2023Bench: P.SAM KOSHY,LAXMI NARAYANA ALISHETTY7 pages
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Facts

The petitioner, M/s. CVK Infrastructure Pvt Ltd, filed a writ petition challenging an order dated July 20, 2023, passed by the Additional Commissioner (Appeals-II), GST and Central Tax. This order rejected the petitioner's appeal. The petitioner contended that while they had proof of tax payment, it was not enclosed with the memo of appeal due to an oversight. They had paid all taxes and late fees but could not upload the proof as the portal was closed. The petitioner produced the payment challan along with the writ petition to substantiate their claims for the interregnum period. The respondents are the Additional Commissioner (Appeals-II), the Superintendent of Central Tax, the Commissioner of Central Tax, and the Union of India.

Held

The Court held that the petitioner had made out a fair case for interference with the impugned order. The primary issue was the rejection of the appeal due to the non-submission of the tax payment challan, which the petitioner attributed to an oversight. The Court noted that the petitioner had produced copies of the challans with the writ petition, demonstrating continuity of business and tax payments. Citing the Delhi High Court's decision in *Kritika Agarwal* and a previous decision of a Division Bench of the same High Court, the Court found that the appellate authority's order warranted intervention. Consequently, the impugned order dated July 20, 2023, was set aside. The matter was remitted back to the respondent No. 1 (Additional Commissioner (Appeals-II)) for reconsideration on its own merits, after due verification of the challan copy to be produced by the petitioner. The respondent No. 1 was directed to pass a decision on the appeal at the earliest, preferably within four weeks.

Key Issues

1. Whether the impugned order rejecting the petitioner's appeal is erroneous, arbitrary, illegal, and passed in violation of the principles of natural justice, particularly concerning the non-consideration of proof of tax payment? (Question of law and fact, turning on principles of natural justice and procedural fairness). Petitioner's Arguments: The petitioner argued that the appellate tribunal has not yet been constituted, necessitating the writ petition. They claimed that the appeal was rejected solely for failing to submit proof of tax payment, despite having made all payments. The oversight in not enclosing the challan was due to inadvertence, and they have now produced the challan with the writ petition. They relied on the Delhi High Court's judgment in *Kritika Agarwal vs. Union of India and ors.*, which held that cancellation of GST registration must be exercised with circumspection. They also referred to a recent decision of the Telangana High Court in W.P.No.36174 of 2022, where a similar matter was remanded. Revenue's Arguments: No specific arguments were recorded for the respondents in the provided text.

Sections Cited

Section 112

AI-generated summary — verify with the full judgment below

Cause title — parties, addresses and appearances
[ 3386 ] HIGH COURT FOR THE STATE OF TELANGANA AT HYDERABAD (Special Original Jurisdiction) THURSDAY ,THE SEVENTEENTH DAY OF AUGUST TWO THOUSAND AND TWENTY THREE PRESENT THE HONOURABLE SRIJUSTICE P.SAM KOSHY AND THE HONOURABLE SRI JUSTICE LAXMI NARAYANA ALISHETTY WRIT PETITION NO: 22114 OF 2023 Between: AND M/s. CVK lnfrastructure Pvt Ltd, Represented bv its Authorised Sionatorv. ShriSriharshaKoshan S/o China Venkateswarlu Having Office at plot No-j2, lDh Moulali, N/alkajgiri, Hyderabad Telangana - 50000 ..,PETITIONER 1 The Additional Commissioner (Appeals-ll), GST and Central Tax, 7th Floor, 9ST Bhavan, LB Stadium Road, Basheerbagh, Hyderabad - 500004. The Superintendent of Central Tax, Jubilee Hills -i, Punjagutta, Hyderabad Telangana The Commissioner of Central Tax, [\/edchal GST Commisisonerate, CF36 plus 25V. Redhills, Hyderabad, Telangana 500004 Union of Union of lndia, Ministry of Finance, Department of Revenue, Rep by its Secretary (Revenue), Room No. 46, North Biock, New Delhi 110001 2 J 4 ...RESPONDENTS Petition under Article 226 ol lhe Constitution of lndia praying that in the circumstances stated in the affidavit filed therewith, the High Court may be pleased to issue a Writ, Order or direction particularly one in the nature of a WRIT OF MANDAMUS or any other appropriate writ (i) to declare the impugned appeal rejection order bearing Order in Appeal No. HYD-GST-MD-AP2-O41-23-24 dated 20.07.2023 passed by the Respondent No. 1 in Appeal No 5112023(MD) cST as erroneous, arbitrary, illegal, passed in violation of principles of natural justice. (ii) to direct Respondents to revoke cancellation of Petitioners GST registration bearing no. 36AACCC8654R1ZW in the interest of justice and equity lA NO: 1 OF 2023 Petition uncler 5lr ,;t on 15-1 CPC praying that in the (lircur s, ances slated in the affidavit filed ir sup:o,'t of the petrtion, the High Court nay be tJeirsed to stay the cancellation ol Petil )r ers GST registration bearing No 364A l: .)Ct654R1ZW Counsel for the Petitio er: SRl. KARAN TALWAR Counsel for the Respor dent Nos. 1to3: SRl. DOMINIC FERNA/{DES (SENIOR S 3 Fcr CBIC) Counsel for the Respor dent No.4: SRl. GADI PRAVEEN h:UM,All, DY.SOLICITOR GEN OF INDIA

The Court made the fol owing: ORDER

THE HON'BLE SRI JUSTICE P.SAM KOSHY : AND THE HON'BLE SRI JUSTICE LAXMI NARAYANA ALISHETTY WRIT PETITION No. 22114 of 2023 ORDER (per llon'blc Sri ..tu.srice P.SAM KOSHY) Heard Mr.Karan Talwar, leamed counsel for the petitioner, Mr.Dorninic Fenmandis, learned counsel appearing fbr respondent Nos. I to 3 and Mr.B.Mukharj ee, learned counsel representing on behalf of Mr.Gadi Praveen Kumar, leamed Deputy Solicitor General of India, for respondent No.

4.

Perused the rnaterial on record.

2.

The instant writ petition has been filed being aggrieved by the impugned order dated 20.07.2023 in Order-in-Appeal No.HYD-GST- MD-AP2-041-23-24 passed by respondent No.1 in Appeal No.51 of 2023 (MD) GST

3.

Leamed counsel for the petitioner at the outset would submit that since the appellate Tribunal has still not been constituted under Section I l2 of the Central Good and Ser-vices Act and the petitioner herein has no other option but to prefer the instant writ petition.

4.

The short point or the primary chailenge to the impugned Order in Appeal is that according to the appellant though he had sufficient rnaterial available with him showing proof of the paqnent of the tax nrade by him, however, it could not be enclosed along with the memo

lh: 'lribunal itas rejccted the apll -:al trr l' cin i i''at- slr'-rtt ti ioner tailing ro subtniL anr' 1.rt'o rl of l.rvlrlnt ;ts:Iii'lst ,l'the bu sin ess. unscl fol the peiitioner submits that inftr':r thr: petitioncr ,n -inuity of busiltess and iras bee I pa y rtll aJl thc taxes hr respondent authorities, br'rt riue to oversight arid r.he proof of payrnent patt i.e., challi tt r:orld not L-''e .rr: the authorities concerned. Notte I i.':le:ls. lear.ned rr petitioner submits that the peii!.iolle'r Ilas orodr'tcerl a ntire: challan alor-rg '"vith the rvrit pelj. i( n thcr he haci ing the interregnum period, so as to : rbsiantiate his ,; 'egards payments that he llad r ade t() he de partrlent ,x 'egnum period. 'fhus, petitioner collns(rl plal'ed to set ,e impugned order dated 20.07.202-1 l:rcl th': matter be to the authorities concerned fol recon:liCe:'ing all the .rt fc,rth by the petitioner in his appeal. J- earled counsel rer further submits that though the petiticr.er had paid the .rest and late fees. bu[ the same catnol t c uploaded since .f is closed for the same' i:i 2 of appeai art',I point of lhe r the contir.uril.'r

5.

Leamed o, kLas been in c regularly tcr inadvefiencr:. prodlrcetl tr,:: counsel fol tl copy o1'tht: , sr-rbmitted du contentions, i during tre ir. aside/quash t remitted bacl contentions P for the petir-ic Wherein the Delhi High Courl held that "the measire of cancellaiion of GST must be exercised with circumspection and only in cases, where it is necessary" .

7.

It is note worlhy to take note of the recent decision of the Division Bench of this Court in W.P.No.36l74 of 2022 wherein the Division bench of this Courl vide order 20.09.20212 under similar facts and circumstances interfered with the order of the appellate authority and remanded the rnatter back for fresh consideration on its own merits.

8.

Admittedty, the petitioner in the instant writ petition produced copies of the challans in respect of the payments that he has made showing the continuity of the business as also showing the payment of taxes to the department. The only inaction of the petitioner is to the extent that in the appeal before the Commissioner he could not enclosed the copy ofchallan that he has paid to the department.

9.

Having heard the contentions putforth on behalf of the petitioner and also on perusing the recent decisions that have been rendered by tlre Division Bench of this Courl as also that of the Delhi High Court 6 I t ' w.e.1c1stzt1zozs and cM Nos.36000/2023 & 36001/2023 I .,,..,

t referred to irr I reJe,Cing paragrirph, we are o1'th: con r':.lere d opirLion that the petitio re' has been able to n)ake out a fa.irl'r qci-d ea.se to establish that t e ilnpugned orCer passed Lry tl'r: app:l ate authcrity warrants interi€ erlce to the extent of confinninq t.-re pa1 n. ents status of tire petitioner",,r :i ying u,ith the same tlrat he has cnclos,::l rvi:lL tlrr: u,rit petition. 'Iho ripugned older dated 20.07.2()2-l parserl bl the Additional (--o nrnissioner (Appeals-tt)(HYLI) iS a:L ordingJl as icle'/q Lrashecl l Lr,- the rnatter is lelrritted blick tc. rcsp,lrclcrt i\Jo. i to reconsider the .p,)sal on its o\\n lnerits after dt e ver ]-:ation of the copy of the cha arr that the petitiorrer shall ploduc: befbre thc appeiiate authority u,hjle prrrsuing his appeal. 'fhe respondent l{:.1 is ex;iected to take a deo s lrr on the appeal at the earlir:st, pre [( r'r]bl) within a perioC offour (t 1' u'eeks.

10.

With the a:ove observation and direction. the V/r t I'erition is allovred. Nio c,rc ,:r as to costs.

11.

As a seqr.iel nriscellaneous applications pending if rr-y in this rvrit petition, shall r;t rn I <:losed S D/.V.KAVITHA To, ASSIST,'\NI REGISTRAR //TRUECOPY// /'' :;r,brtdru oFFtcER The Additioral Cc r issioner (Appea s-ll) GSI a1d 9tlIilJ'* llh F 3or' GST Bil;;;;. tB sia:ii n qoao Basheerbasn Hvderaba! - 5010c4 Tffi'S;F;i.;,i. i, iii|-it|.rr f i, Luo"Lree ri lls -'1 ' Punlar;utta l- v:ieraoad Telanoana iF5'i%-*I-,ri..io.e c Central Tax, N4edchal GST Com m isisonera t': CF36 plus 25V' n"inir-s. Hv:liao I T€'langara 50000r Tha ea^ro;rv r-rr ol Union 6[ tnOla, Vinistry of Financ(i, Depz rtrnent of RevenUe, l#ff;;i, R,,;.; i,. ao, uol.tn Block Netv Delhi '1 10001 iiffi $is fs i ,l[1fri"-iEH',tInafl':i3:ii!?!Hil11e.,o,n,'. ;r cB,c) rQfuQr One CC to sRl. ( \l)l PRAVEii! K-UMAR DV S<jutcrioa GE r ')c INDIA [oPUC] Two CD Cooies BM 1 2 3 4 o 7I

HIGH COURT DATED:1710812)23 ORDER WP.No.22114 o: 2023 ALLOWING THi: WRIT PET|T|ON WITHOUT COS] S --i - . /t ,\1 2] AU .:/ G2m rArF ( 7- TL

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.