Transaction cannot be suspected when GST registration of other end dealer is cancelled with retrospective effect

Shraddha Overseas Private Limited Vs Assistant Commissioner of State Tax (Calcutta High Court)

Transaction cannot be suspected when GST registration of other end dealer is cancelled with retrospective effect

The Hon’ble Calcutta High Court in M/s Shraddha Overseas Private Limited & Anr. v. The Assistant Commissioner of State Tax [M.A.T No.1860 of 2022 dated December 16, 2022] set aside the order passed by the Revenue Department cancelling Goods and Services Tax (“GST”) Registrations of the assessee on the grounds of suspicion. Held that, the transaction cannot be suspected merely on the grounds that the GST Registration of the other-end dealer was cancelled with retrospective effect.

Facts:

M/s Shraddha Overseas Private Limited (“the Appellant”) entered into a business transaction of transporting the goods with M/s Suraj Enterprises in October, 2018. The tax authorities of Utaganda conducted two separate enquiries in the premises of M/s. Suraj Enterprise on November 14, 2019 and February 17, 2020 and concluded that M/s Suraj Enterprises was a no existing dealer and had no registration. Thus, a doubt had arisen in the mind of the Revenue Department (“the Respondent”) with regard to the genuineness of the transaction between the Appellant and M/s Suraj Enterprises.

The Appellant stated that in the Show Cause Notice (“SCN”) issued to M/s. Suraj Enterprise, there was no such allegation against the Appellant and though several grounds were raised by the Respondent, none of the grounds were considered against the Appellant.

The Appellant submitted that, to conclude that the other end dealer is a non-existing dealer, there should be material to show that on the date when the Appellant had transaction with them, there was no valid registration. Also, if the cancellation of the registration of the other end dealer is by way of retrospective cancellation, then the question would be as to whether it would affect the transaction done by the Appellant, more particularly when the Appellant have been able to show that the payments for the transaction have been done through banking challans.

Hence, this petition has been filed challenging an order passed by the learned Single Bench

declining to grant interim relief sought.

Issue:

Whether the cancellation of registration of the other end dealer by retrospective cancellation will affect their transaction with the Appellant?

Held:

The Hon’ble Calcutta High Court in M.A.T No.1860 of 2022 held as under:

• Opined that, the order passed by the Respondent is a non-speaking order in the sense that there is no independent finding rendered by the Respondent qua the allegation against the Appellant.
• Noted that, the other end dealer’s registration was cancelled with retrospective effect.
• Remanded the matter back to the Respondent to make fresh consideration after affording an opportunity of personal hearing to the Appellant.

FULL TEXT OF THE JUDGMENT/ORDER OF CALCUTTA HIGH COURT

1. This is an application to condone the delay of 33 days in filing the instant appeal.

2. We have heard Mr. Ankit Kanodia, learned counsel appearing for the appellants duly assisted by Ms. Megha Agarwal, learned Advocate and Mr. T. M. Siddique, learned counsel appearing for the respondents/State.

3. We are satisfied with the reasons assigned in the affidavit filed in support of the application. Accordingly, the delay in filing the instant appeal is condoned.

4. The application for condonation of delay being I.A. No.CAN 1 of 2022 is allowed. There shall be no order as to costs.

Re: MAT 1860 of 2022

5. This appeal has been filed by the writ petitioner challenging an order passed by the learned Single Bench declining to grant interim relief sought for. The learned Advocate for the appellants as advanced their arguments in the main writ petition itself. Therefore, by this order, the appeal and the writ petition stand disposed of.

6. On going through the order passed by the appellate authority dated 30th June, 2022, it is seen that it is an elaborate order in which the entire factual matrix has been brought on record by the appellate authority. Interestingly, in page 5 of the order, under the heading “Observations of this chair” substantial portion of the transaction have been found by the appellate authority to have been done with valid documentation. However, a doubt had arisen in the mind of the appellate authority with regard to the genuineness of the transaction going by the pay load of the vehicles, which was used for transporting the goods in question.

7. After noting these facts, the appellate authority straight away refers to the action taken by the tax authorities of Ultadanga wherein two separate enquiries were conducted in the business premises of M/s. Suraj Enterprise and the enquiry was conducted on 14th November, 2019 and 17th February, 2020. Admittedly, the transaction done by the appellant was in October, 2018. Thus, to conclude that the other end dealer is a non-existing dealer, there should be material to show that on the date when the appellants had transaction with him, there was no valid registration. If the cancellation of the registration of the other end dealer is by way of retrospective cancellation, then the question would be as to whether it would affect the transaction done by the appellants, more particularly when the appellants have been able to show that the payments for the transaction have been done through banking challans.

8. Thus, we find that the appellate authority was solely guided by the action taken by the Ultadanga tax authorities without examining the specific facts and circumstances of the case on hand.

9. Further, the case of the appellants is that in the show cause notice, there was no such allegation against the appellants and though several grounds were raised by the adjudicating authority, none of the grounds were considered.

10. Thus, we find that the order passed by the appellate authority to be a non-speaking order in the sense that there is no independent finding rendered by the appellate authority qua the allegation against the appellants. Therefore, it is a fit case where the matter should be remanded back to the appellate authority to specifically consider the contentions, which was advanced by the appellants and also the fact that the other end dealer’s registration was cancelled with retrospective effect.

11. For the above reasons, the appeal along with connected application and the writ petition are allowed and the order passed by the appellate authority dated 30th June, 2022 is set aside and the matter is remanded back to the appellate authority for fresh consideration after affording an opportunity of personal hearing to the authorised representative of the appellants.

12. There shall be no order as to costs.

13. Urgent photostat certified copy of this order, if applied for, be furnished to the parties expeditiously upon compliance of all legal formalities.

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