Case Law Details
R. Trading Co. Proprietorship of Mr. Rajendra Kumar Bothra Through Legal Heir Sh. Mudit Bothra Vs Commissioner of Delhi Goods And Services Tax And Another (Delhi High Court)
Introduction: In a recent case before the Delhi High Court, the issue of retrospective cancellation of GST registration due to the death of the taxpayer was brought into focus. The petitioner, Mr. Mudit Bothra, legal heir of late Mr. Rajendra Kumar Bothra, challenged the cancellation order issued by the Commissioner of Delhi Goods and Services Tax.
Detailed Analysis: The crux of the matter revolves around the non-filing of GST returns following the demise of Mr. Rajendra Kumar Bothra. The petitioner argued that since the taxpayer passed away, no returns were filed after April 2021. Consequently, the Assistant Commissioner issued a show cause notice and subsequently cancelled the registration retrospectively from July 2017.
The High Court analyzed the provisions of Section 29(2) of the Act, emphasizing that registration cannot be cancelled with retrospective effect mechanically. The proper officer must exercise discretion based on objective criteria, considering whether the circumstances warrant such cancellation. Merely non-filing of returns does not automatically justify retrospective cancellation.
Furthermore, the Court highlighted the consequences of retrospective cancellation, particularly the denial of input tax credit to the taxpayer’s customers. This aspect must be considered by the proper officer before passing such an order.
The Court also noted the lack of opportunity given to the petitioner to object to the retrospective cancellation in the show cause notice. Considering the petitioner’s intention to discontinue the business, the Court modified the cancellation order to be effective from the date of the taxpayer’s demise.
Conclusion: The Delhi High Court’s decision to quash the retrospective GST cancellation order demonstrates the importance of procedural fairness and objective criteria in tax matters. By considering the specific circumstances and intentions of the taxpayer, the Court ensured that justice was served. This case serves as a significant precedent in protecting the rights of taxpayers and legal heirs in GST proceedings, emphasizing the need for careful consideration and due process.
FULL TEXT OF THE JUDGMENT/ORDER OF DELHI HIGH COURT
1. Petitioner seeks quashing of show cause notice dated 12.11.2021 issued on the ground that “Retuns 3 B not filed GTO more than 5 crore” and impugns order dated 30.12.2021 cancelling the registration of the firm retrospectively with effect from 01.07.2017.
2. The subject petition has been filed by Mr. Mudit Bothra, legal heir of late Mr. Rajendra Kumar Bothra, who was the sole proprietor of M/s R. Trading Company and was registered under the Goods and Services Tax Act, 2017 (hereinafter referred to as the Act).
3. As per the Petitioner, Mr. Rajendra Kumar Bothra expired on 13.04.2021 and consequently, No GST returns were filed after April, 2021 on account of his passing away.
4. Since no reply was received to the show cause notice, the Assistant Commissioner passed the impugned order dated 30.12.2021, cancelling the registration retrospectively with effect from 07.2017.
5. Learned counsel for the Petitioner submits that the Petitioner does not intend to carry on business and the business has been discontinued immediately on the demise of Mr. Rajendra Kumar
6. In terms of Section 29(2) of the Act, the proper officer may cancel the GST registration of a person from such date including any retrospective date, as he may deem fit if the circumstances set out in the said sub-section are satisfied. Registration cannot be cancelled with retrospective effect mechanically. It can be cancelled only if the proper officer deems it fit to do so. Such satisfaction cannot be subjective but must be based on some objective criteria. Merely, because a taxpayer has not filed the returns for some period does not mean that the taxpayer’s registration is required to be cancelled with retrospective date also covering the period when the returns were filed and the taxpayer was compliant.
7. It is important to note that, according to the respondent, one of the consequences for cancelling a tax payer’s registration with retrospective effect is that the taxpayer’s customers are denied the input tax credit availed in respect of the supplies made by the tax payer during such period. Although, we do not consider it apposite to examine this aspect but assuming that the respondent’s contention in this regard is correct, it would follow that the proper officer is also required to consider this aspect while passing any order for cancellation of GST registration with retrospective effect. Thus, a taxpayer’s registration can be cancelled with retrospective effect only where such consequences are intended and are warranted.
8. There is nothing on record to show that the deceased was not making the requisite compliances under the Act. As such the retrospective cancellation is not warranted
9. We may also note that the show cause notice did not put the noticee to notice that the registration was liable to be cancelled retrospectively. Accordingly, the Petitioner had no opportunity to even object to the retrospective cancellation of the registration.
10. In view of the fact that petitioner does not seek to continue the registration, the impugned order dated 30.12.2021 is modified to the limited extent that registration shall now be treated as cancelled with effect from 13.04.2021 i.e., date of demise of late Mr. Rajendra Kumar Bothra. The Petitioners i.e., legal heir of the deceased proprietor shall file the requisite returns of any transactions of the business done and shall also place the details of stock left at the time of his death.
11. Respondents are also not precluded from taking any steps for recovery of any tax, penalty or interest that may be due in respect of the subject firm in accordance with law.
12. Petition is accordingly disposed of in the above terms.
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