Kushal Das v. The State of Assam and 4 Ors

ORDER

17.03.2023 Heard Mr. R. S. Mishra, learned counsel for the petitioner. Also heard Mr. S. C. Keyal, learned standing counsel for the GST.

¶2The petitioner firm deals with the business of providing light motor vehicle to ONGCL on hiring. The petitioner firm is represented by its proprietor, namely Sri Kushal Das. The petitioner firm has a GST Registration with effect from

17.05.2018 being Registration No. 18AHHPD5656M3ZV.

¶3Pursuant to being registered under the GST, the petitioner firm was regularly submitted the GST returns till the month of December, 2019. Thereafter, several personal problems due to COVID19 Pandemic situation and lockdown throughout the entire country, the GST returns could not be submitted. Because of countrywide lockdown, the business suffered severe financial losses. On 19.11.2019, respondent No. 4 issued a Show cause notice on the petitioner to show cause as to why the GST should not be cancelled for not filing the returns for a continuous period of 6 months. The reply was Page No.# 3/5 directed to be submitted within 7 days from the date of service of notice.

¶4It is submitted by the learned counsel for the petitioner that by order dated 03.12.2019 under reference No. ZA181219003495I, the GST registration of the petitioner was cancelled for not having submitted his reply to the Show cause notice. The effective date of cancellation was 03.12.2019. The petitioner was filed an appeal before the respondent No. 3 through online mode on

03.11.2022 against the cancellation of the GST registration. After filing of the appeal, the respondent No. 3 issued another show cause notice bearing No. ZDA1811220006413 dated 05.11.2022 seeking clarification on the following grounds:

(i) You have not paid tax due completely; or

(ii) Refund has been released erroneously; or

(iii) Input tax credit has been wrongly availed for the order in appeal. However, the appeal filed by the petitioner came to be rejected by the appellate authority vide order dated 22.11.2022 on the ground of limitation.

¶5Mr. S.C. Keyal, learned Standing counsel, GST submits that this Court had passed orders remanding the matter back to the appellate Authority for pre-deciding the matter on merits.

¶6The learned counsels for the parties have been heard. Pleadings on record Page No.# 4/5 have also been perused.

¶7The petitioner is in the business of providing light motor vehicle to ONGCL on hiring. Under the GST regime, the petitioner is required to pay the necessary dues under the CGST or SGST as the case may be or both. The statutory dues are required to be paid by all entities who are registered under the GST regime. Such payments of statutory dues contribute towards the revenue collection by the Union. If the petitioner is not included within the GST regime, then any statutory dues that may be required to be deposited by the petitioner will not be deposited and which will not be in the interest of the revenue. Therefore, in order that the petitioner is required to comply with his statutory obligations of payment of taxes under the GST regime, it would be necessary for the departmental authorities to re-consider the prayer of the petitioner for revocation of his cancellation of GST registration.

¶8It is submitted at the bar that there are several orders passed by this Court as well as other Co-ordinate Benches in similar matters whereby the matters have been disposed of with a direction to the respondent authority to revoke the cancellation of registration upon due payment of all statutory dues payable by the petitioners. In some matters as in the present proceedings, the assessee had approached the statutory appellate authority for redressal of their grievances which however was not redressed by the appellate authority and instead the appeals preferred were dismissed on the ground of limitation. This Court is of the view that since similar such orders have been passed by this Court as well as other Co-ordinate Benches, it will serve no purpose to keep the present writ petition pending and this present writ petition can also be disposed Page No.# 5/5 of in terms of similar orders as had been done by the orders passed in W.P(C) No.4063/2023, W.P(C) No. 6175/2022, W.P(C) No. 576/2023 and ors.

¶9A writ Court is empowered to condone the delay of any statutory or quasi judicial authority. Such power is inherent in a Writ Court [Commissioner of Income Tax-15 –Vs-Pheroza Framroze and Company, reported in (2017) 11 SCC 730]. Accordingly, the impugned order dated 19.11.2019 and the order of the Appellate Authority dated 03.12.2019 as well as order dated 22.11.2022 are hereby interfered with and set aside. It is directed that the Respondent No. 4, namely Assistant Commissioner of Central Goods and Service Tax, Sivasagar, Assam will intimate the petitioner the total outstanding statutory dues standing in the name of the petitioner till the date on which her GST registration was cancelled. Upon such intimation, if any such outstanding statutory dues under GST are required to be paid, the same shall be deposited by the petitioner without fail. Upon such payment of statutory dues under the GST by the petitioner, the appellate authority will re-decide the appeal on merits and pass appropriate order.

¶10The impugned order dated 03.12.2019 passed by the appellate authority is set aside and the matter is remanded back to the appellate authority to comply with the directions as indicated above.

¶11Accordingly, the writ petition stand disposed of. No order as to costs.

JUDGE Comparing Assistant

PageoNo.#o1/5 GAHC010263272022 ooooooo ooooooooooooooo ooooooooooooooooTHEoGAUHATIoHIGHoCOURTo (HIGHoCOURToOFoASSAM,oNAGALAND,oMIZORAMoANDoARUNACHALoPRADESH)o ooooooooooooooooooooooooooooooooooooooooooCaseo:oWP(C)/8317/2022 KUSHALoDAS SONoOFoPHATIKoDAS o RESIDENToOFoRUPAHIMUKHoGAON o BHATIAPARA oP.O.oBHATIAPARA o P.S.oANDoDIST.-oSIVASAGAR oASSAM. oVERSUS THEoSTATEoOFoASSAMoANDo4oORS COMMISSIONERoANDoSECRETARYoTOoTHEoGOVERNMENToOFoASSAM o FINANCEoDEPARTMENT oDISPUR o ASSAM. 2:THEoCOMMISSIONERoOFoSTATEoGOODSoANDoSERVICEoTAX GUWAHATI oKARoBHAWAN o GANESHGURI oDISPUR o GUWAHATI-o781006 oASSAM. o3:THEoJOINToCOMMISSIONERoOFoSTATEoTAXo(APPEALS)oJORHAT ASSAM. o4:THEoASSISTANToCOMMISSIONERoOFoCENTRALoGOODSoANDoSERVICEo Page No.# 2/5 TAX SIVASAGAR ASSAM. 5:THE SUPERINTENDENT STATE GOODS AND SERVICE TAX SIVASAGAR ASSAM. ------------ Advocate for : MR. A K GUPTA Advocate for : SC FINANCE appearing for THE STATE OF ASSAM AND 4 ORS BEFORE HONOURABLE MR. JUSTICE SOUMITRA SAIKIA