Order date: 11 October 2022

Facts

• The Petitioner, M/s A.H Marble Craft, the erstwhile proprietor of the firm Shri Abdul Hameed Bhati, father of the present proprietor Shri Mohammad Afzal, expired on 31.01.2018 whereupon, an intimation was forwarded to the respondent CGST Department through a letter in hard copy.
• The CGST Act provides a procedure for cancellation and thereafter, transfer of registration of the dealer pursuant to the death of the proprietor of the firm. However, such process is permissible if the information regarding death of the proprietor is uploaded on common portal in FORM GST REG-16. 
• Petitioner contended that the information regarding the death of the sole proprietor was not forwarded to the CGST Department electronically and in prescribed FORM GST REG-16 and thus, further attempts made on behalf of the firm to file the GST returns were blocked. In the meantime, a fresh registration has been acquired by the petitioner.
• Being aggrieved by the non-acceptance of the prayer for cancellation and transfer of the GST registration, and the inaction of the respondent in opening the portal so as to complete the tax liability as provided under Section 93 of the CGST Act, the instant writ petition has been preferred.

Issue

• Whether the non-acceptance of cancellation and transfer of the GST registration are in order?

Order

• The Hon’ble Court observed that this absolute hyper technical ground cannot be considered valid so as to deny the petitioner from the opportunity to link the GSTIN of his father’s firm with the new GSTIN number of the firm.
• As per circular No.96/15/2019-GST dated 28.03.2019 issued by CBIC and the clause 3(b) the legal heirs of the sole proprietor of a business can file an application for cancellation of registration electronically on common portal on account of transfer of business for any reasons including the death of the proprietor. Thereafter, the GSTIN of the transferee to whom the business had been transferred can be linked with the GSTIN of the transferor.
• The petitioner gave the intimation about the death of the proprietor of the firm albeit in a wrong performa, which fact establishes his bonafides that he is desirous of removing the anomalies and clearing off the tax liability.
• The court directed the respondent to activate the common portal and allow the petitioner to upload the appropriate information in FORM REG-16 within next 30 days. As soon as the information is provided, the GSTIN number of the transferee and the transferor shall be linked as per clause 3(b) of the Circular dated 28.03.2019.
• Hence the petition is allowed.