As per sec 29(2)(c) of the CGST Act, the proper officer may, cancel the registration of a person from such date, including retrospective date (i.e. earlier date), as he may deem fit, where there is a person under normal scheme has not furnished returns for continuous period of 6 months.

JUDICIAL OUTLOOK:

Six months GST return filing default for cancellation of registration should be existing both at time of issuance of notice and passing order : Kerala HC

The Kerala HC  in Phoenix Rubbers v. Commissioner of state GST & Ors. {WP(c). No. 35159 of 2019(T) dated 03.02.2020}, while setting aside the order cancelling the registration, held as under :

– Sec 29(2)(c) mandates that power for cancellation of registration in case where there is continuous six month’s default on the part of the assessee in filing the returns. Since the competent official is obliged to issue a notice before he passes final orders, it goes without saying that the requirement of 6 months’ continuous period should be fulfilled both at the time of issuance of the above said notice in terms of the proviso to sec 29(2) of the CGST Act read with rule 22 of the CGST Rules, but also at the stage of passing the final order cancelling the registration as per sec 29(2)(c).

– In the instant case, the jurisdictional fact regarding the 6 months’ continuous default on the part of the assessee is certainly fulfilled at the time of issuance of show cause notice dated 13.11.2019. Whereas the said vital requirement of jurisdictional fact is non-existent as on the date of issuance of the impugned cancellation order dated 10.12.2019.

– If that be so, it is only to be held that the impugned order is illegal and ultra vires and is liable to be interdicted by this court. Accordingly, it is ordered that the impugned order will stand quashed. 

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Qualification: CA in Practice
Company: RICHANK MALHOTRA & ASSOCIATES
Location: DELHI, Delhi, India
Member Since: 11 Jul 2022 | Total Posts: 3
Richank has over 6 years of professional experience in handling Audit & Assurance of various entities, Direct & Indirect Tax Advisory services, Litigation Services, and Finalization of Income Tax returns, Monthly Compliance which includes GST, TDS and other Statutory Compliance on a regular View Full Profile

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