Case Law Details
Sunil Kumar Vij Vs Union of India and others (Himachal Pradesh High court)
The Hon’ble High Court of Himachal Pradesh in Sunil Kumar Vij v. Union of India and Others [CWP No. 8478 of 2022 dated December 13, 2022] set aside the order of Assistant Commissioner (Appeals) rejecting the appeal of the assessee for restoration of the Goods and Services Tax (“GST”) Registration on the grounds delay of one day. Held that, rejection of appeal merely because of delay of one day is such a hyper technical and pedantic view of the matter to hold that even the delay of one day would be fatal to the maintainability of the appeal.
Facts:
Sunil Kumar Vij (“the Petitioner”) is a dealer registered under GST and was served with a Show Cause Notice (“SCN”) dated June 14, 2020 for cancellation of its GST Registration. The Revenue Department (“the Respondent”) thereafter, suo moto cancelled the Petitioner’s GST Registration vide order dated July 28, 2020 on the ground that the Petitioner had not filed up-to-date returns along with payment of tax. Further, rejected the application for revocation of the GST Registration filed by the Petitioner dated October 25, 2021.
Subsequently, the Petitioner filed an appeal for the same before the Commissioner (Appeals) who vide order dated August 29, 2022 (“the Impugned Order”) which was dismissed only on account of its being barred by one day.
Being aggrieved, this petition has been filed.
Issue:
Whether the order passed for rejection of appeal due to delay of one day is against the principles of natural justice?
Held:
The Hon’ble High Court of Himachal Pradesh in CWP No. 8478 of 2022 held as under:
- Opined that, the rejection of appeal merely because of delay of one day is such a hyper technical and pedantic view of the matter to hold that even the delay of one day would be fatal to the maintainability of the appeal.
- Noted that, the Respondent was vested with an authority for condoling the delay in the appeal filed by the Petitioner.
- Observed that, the Petitioner would not be able to continue with his business in absence of GST registration and thus would be deprived on his livelihood which amounts to violation of his right to life and liberty enshrined under Article 21 of the Constitution of India.
- Condoned the delay in filing of appeal by the Petitioner.
- Set aside the Impugned Order and remanded the matter back to the Respondent to decide the appeal on its merits.
FULL TEXT OF THE JUDGMENT/ORDER OF HIMACHAL PRADESH HIGH COURT
The instant petition has been fled for grant of the following substantive reliefs:-
i) Issue a writ in the nature of certiorari for quashing of order dated 29.08.2022 issued by the respondent No.2 where in respondent No.2 has rejected the appeal in original No. 34/ADC/A/GST/CHD/2022-23 on the ground of one day’s delay as the impugned order has been
passed in gross violation of the principles of natural justice by not deciding the appeal on merit. AND/OR
ii) For issuance of writ in the nature of mandamus/certiorari directing the respondents to stay the operation of order dated 28.07.2020
Annexure P passed by Respondent No. during pendency of writ petition and direct the respondent No. 3 & 4 to revoke the cancellation of CGST Registration in the interest of law and justice.”
2. The petitioner is a dealer registered under the GST and was served with a show cause notice dated 14.07.2020 for cancellation of the registration. Respondent No.4 thereafter suo motu cancelled GST registration vide order dated 28.07.2020 on the ground that the petitioner had not filled up up-to-date returns along with payment of tax. Respondent No.3 rejected the application for revocation of the GST registration vide order dated 25.10.2021 and the appeal fled against the same was dismissed by respondent No.2 only on account of its being barred by one day.
3. We really wonder why and how respondent No.2 could have taken such a hyper technical and pedantic view of the matter to hold that even the delay of one day would be fatal to the maintainability of the appeal.
4. It is not in dispute that respondent No.2 was not vested with an authority to condone the delay and if at all required any precedent on the issue, then we may conveniently refer to the following orders passed by various High Courts:-
1. M/s G.G. Agencies Girijeshwar Rice Mill vs. The State of Karnataka & Ors. (Writ Petition No. 15344 of 2022, decided on 18.08.2022).
2. Vinod Kumar Vs. Commissioner Uttarakhand State GST & Ors.: 2022 (7) TMI 128-Uttarakhand High Court (Special Appeal No. 123 of 2022).
3. TVL. Suguna Cutpiece Centre vs. The Appellate Deputy Commissioner (ST) (GST), The Assistant Commissioner (Circle), Salem Bazaar: 2022 (2) TMI 933-Madras High Court.
4. M/s Trans India Carco Carriers Vs. The Assistant Commissioner (Circle) W.P. Nos. 18537 of 2022 and etc.- Madras High Court.
5. Civil Writ Petition No. 14521/2022 titled Poonamchand Saran vs. Union of India and others along with connected matter, decided on 29.09.2022.
5. It cannot be disputed that the petitioner would not be able to continue with his business in absence of GST registration and thus would be deprived of his livelihood which amounts to violation of his right to life and liberty as enshrined under Article 21 of the Constitution of India.
6. In this background, the order dated 29.08.2022 is set aside. The delay in fling of appeal before respondent No.2 stands condoned and respondent No.2 shall now decide the appeal on its merits. The parties are left to bear their own costs.
7. With the aforesaid observations, the writ petitions disposed of.
8. Pending application, if any, also stands disposed of.
Notes:
1. Whether the reporters of the local papers may be allowed to see the Judgment? Yes
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