GST
TRT-2025-
Orissa High Court
Date:-13-10-22
In:-
Issue Favourable to Tax Payer ?:-
Order date – 13 October 2022
Facts –
- The petitioner, Sri Durga Raman Patnaik with legal name and trade name “DURGA RAMAN PATNAIK” registered under the provisions of the Central Goods and Services Tax Act, 2017 (referred to as “CGST Act”).
- Show cause notice was issued on 15.10.2019 cancelling GST registration invoking provisions of section 29(2)(c) of the CGST Act with effect from 15.10.2019 inasmuch as there was non-filing of returns for consecutive period of six months. Further instead of seeking revocation of cancellation of registration under Section 30 of the CGST Act before the proper officer, assailing aforementioned order dated 15.10.2019, the petitioner preferred an appeal under Section 107 of the CGST Act on 05.08.2021 with a delay of around 660 days which came to be rejected on 07.10.2021.
- Aggrieve ,the petitioner has filed an appeal.
Issue –
- Whether the cancellation of GST registration is in order?
Order –
- The Hon’ble High court observed that the order of cancellation of registration was passed with effect from 15.10.2019 and in terms of Section 107 the petitioner was required to file the appeal within three months from the date of communication of the order and further condonable period available was one month therefrom. In the present case total period lapsed on 14.02.2020.
- The Hon’ble Supreme Court of India in Prakash Corporates Vrs. Dee Vee Projects Ltd., (2022) 5 SCC 112 = (2022) 1 SCC (L&S) 771 =2022 SCC On Line SC 180 took cognizance of “unprecedentedly unfavorable and unpleasant” situation faced by entire humanity from or around the month of December 2019. The Appellate Authority, while passing order on 07.10.2021, had no occasion to take into consideration the orders of the Hon’ble Court more particularly Cognizance for Extension of Limitation.
- It is pertinent to say that writ petition is maintainable challenging the order in appeal, albeit the petitioner is entitled to carry the matter before the Appellate Tribunal under Section 112 of the CGST Act inasmuch as even after lapse of 5 years, the said Appellate Tribunal is not constituted under Section 109.
- In the event GST registration number is not restored, the petitioner would not be in a position to raise a bill as e-invoice system has been put in place in the GST regime. So, if the petitioner is denied of revival of GST registration number, it would affect his right to livelihood (Article 21 of the Constitution of India) as also right to carry on business [Article 19(1)(g)].
- It is also held payment of tax shall not be allowed to be made or adjusted from and out of any Input Tax Credit which may be lying unutilized or unclaimed in the hands of the petitioner.
- On payment of tax, interest, penalty and late fee, if any, and uploading of returns, as conceded by both the parties, the petitioner is at liberty to file the application for revocation of cancellation of registration within a period of 7 days therefrom along with petition for condonation of delay.
- Hence the appeal is allowed.
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