Aggarwal Dyeing and Printing Works Vs State of Gujarat (Gujarat High Court)
Facts- The writ applicant is a sole proprietary concern and is engaged in the business of manufacturing of dyeing and printing fabrics. The writ applicant was a registered dealer holding GSTIN with effect from 04.08.2017. The copy of such registration certificate in the Form GST REG-06, dated 16.02.2018 has been placed on record. The writ applicant claims to be a regular tax payer.
On 18.09.2018, the writ applicant was served with a notice calling upon to reply as to why the registration should not be cancelled for the reason that the writ applicant had not filed his returns for a continuous period of six months. The writ applicant was asked to furnish his reply and hearing was fixed on 27.09.2018.
The writ applicant, however, failed to submit his reply and on 30.09.2018, the Assistant Commissioner, passed an ex-parte order of cancellation of registration with effect from it’s date of registration ie. 04.08.2017.
Conclusion- It was a transitional phase, whereby the old CST Act was repealed and the new regime of CGST/ GGST has come into force. With the different forms and procedure envisaged there under, any layman is bound to take time to adhered to the norms. The Record reveals that subsequently the writ applicants have claim to have filed their returns and have even deposited all dues. We further notice that such exercise has been undertaken through the writ applicant’s Tax Consultant who were professionally engaged to undertake such task. Unfortunately, information of the returns for certain period not being uploaded, surfaced in the year 2019 and the cause explained suggest that circumstances were beyond the writ applicant’s reach. In such peculiar circumstances, the authority ought to have condoned the delay which unfortunately was not done, despite the writ applicant having made a fervent request for condonation of delay in filing appeal seeking revocation of cancellation of registration.
We direct that till the technical glitches are not cured, the department will henceforth issue show cause notice in a physical form containing all the material particulars and information therein to enable the dealer to effectively respond to the same. Such show cause notice in physical form shall be dispatched to the dealer by the RPAD. In the same manner, the final order shall also be passed in physical form containing all necessary reasons and the same shall be forwarded/communicated to the dealer by way of RPAD. Any lapse in this regard, henceforth shall be viewed very strictly.
FULL TEXT OF THE JUDGMENT/ORDER OF GUJARAT HIGH COURT
1. Since the issues raised in all the captioned writ applications are the same, those were taken up for hearing analogously and are being disposed of by this common judgment and order.
2. For the sake of convenience, the Special Civil Application No.18860 of 2021 is treated as the lead matter.
3. By this writ-application under Article 226 of the Constitution of India, the writ applicants have prayed for the following reliefs:
“a. Direct Respondent no.3 to revoke cancellation of the registration of the writ applicant bearing no. 24AEXPA3306CIZZ
b. Direct Respondent no.2 to consider the Appeal for Revocation the cancellation of Respondent dated 17.07.2021 filed by the writ applicant on merits
c. Direct Respondent no.3 to accept and consider the Application for revocation of registration by the writ applicant within a period of 14 days from the date of application.
d. Award costs of the writ application and orders thereon; and
e. Grant such further and other interim reliefs, as this Hon’ble Court may deem fit and proper in the present nature and circumstances of the case.”
4. The summary of facts of the case as pleaded by the writ applicant in the lead matter are as under :
4.1 The writ applicant is a sole proprietary concern and is engaged in the business of manufacturing of dyeing and printing fabrics. The writ applicant was a registered dealer holding GSTIN registration no. 24AEXPA3306C1ZZ, under the provisions of the Gujarat Goods and Service Tax Act, 2017 (for short ‘the Act, 2017’) with effect from 04.08.2017. The copy of such registration certificate in the Form GST REG-06, dated 16.02.2018 has been placed on record. The writ applicant claims to be a regular tax payer.
4.2 On 18.09.2018, the writ applicant was served with a show cause notice issued by respondent no.3 calling upon to reply as to why the registration should not be cancelled for the reason that the writ applicant had not filed his returns for a continuous period of six months. The writ applicant was asked to furnish his reply and hearing was fixed on 27.09.2018.
4.3 The writ applicant, however, failed to submit his reply and on 30.09.2018, the Assistant Commissioner, Ghatak 21 (Ahmedabad) passed an ex-parte order of cancellation of registration with effect from it’s date of registration ie. 04.08.2017.
4.4 The writ applicant claims to be lacking knowledge of the New tax regime and having learnt about the cancellation of registration, sought the advise of his Chartered Accountant and belatedly filed his returns. The writ applicant has placed on record the returns filed in FORM GSTR-3B for the period between April, 2020 and March, 2021. The writ applicant had availed the benefit of the amnesty scheme dated 28.05.2021 by making the requisite payment of an amount of Rs. 24,000/-. The writ applicant has placed on record the challan dated 29.07.2021 about deposit of such amount.
4.5 After a delay of almost more than two years, the writ applicant preferred an appeal on 17.07.2021, before the Appellate Authority by submitting FORM GST APL-01 under Section 107 of the Act, 2017 read with Rule 108(1) of the Rules framed there under.
4.6 The writ applicant tried to offer explanation for the delay stating that because of lack of knowledge about filing of returns , more particularly, when the turnover was ‘NIL’, under the bonafide belief that no return is required to be tendered, the same was not submitted. The writ applicant further offered to deposit the amount of tax and penalty and to abide by the filing of return and payment of tax in future transactions.
4.7 The Appellate Authority however, vide order dated 12.10.2021, declined to exercise its discretion and thereby dismissed the appeal on the ground of delay of 2 years and 17 days.
4.8 In such circumstances, the writ applicant has approach this court, seeking reliefs as sought for.
5. Before we examine the merits of the case, we may reproduce tabular details of allied matters, as under :
