The Andhra Pradesh High Court (HC) allowed the appeal on Goods and Service Tax (GST) registration cancellation in absence of a GST tribunal under section 109 of the Central Goods and Services Tax Act(CGST), 2017
The petitioner seeks a writ of mandamus declaring the order dated 20.01.2022 issued by the 4th respondent cancelling the Goods and Service Tax registration of the petitioner firm on the ground that the petitioner firm did not submit returns for a continuous period of six (6) months but without providing an opportunity of hearing as arbitrary and illegal and consequently set aside the same.
The 4th respondent cancelled the GST Registration of the petitioner w.e.f 20.01.2022 for the reason of failure on the part of the petitioner to file returns for a period of six months beforethe issuance of the show-cause notice dated 02.12.2021.
The appeal was dismissed on the sole ground that the appeal was filed with a further delay of 35 days and as per Section 107 of the GST Act, the delay could be condoned for a period of one month and since the appeal was exceeding the limitation, the appellate authority is not vested with the powers to condone the said delay beyond 30 days.
It was viewed that the petitioner mentioned the reasons for non-filing of the returns and on a technical ground that the appeal was filed beyond the condonable period, the appeal was rejected and since the GST Tribunal has not been constituted under Section 109 of the CGST Act, the petitioner has no other go except invoking the jurisdiction of this Court under Article 226 of the Constitution of India.
It was submitted by the petitioner that he submitted returns for July 2021 to December 2021 and paid tax. For the subsequent period from July 2022 till date, he could not submit the returns since the web portal of the respondent did not permit him as his registration was cancelled.
In similar circumstances, the Division Bench of the High Court for the State of Telangana having considered the fact that the GST Tribunal has not been constituted under Section 109 of the CGST Act and thereby the petitioner could not be left without any remedy, held that “it would be just and proper if the entire matter was remitted back to the 2nd respondent therein to reconsider the case of the petitioner and pass appropriate order by law.”
A two-member bench comprising Justice U Durga Prasad Rao and Justice V Gopala Krishna Rao observed that the GST Tribunal has not been constituted as per the provisions of the Act to enable the petitioner to pursue his further legal remedy.
The Court allowed the writ petition and the matter is remitted back to the preliminary authority i.e., the 4th respondent to consider the case of the petitioner and after verifying the returns submitted by the petitioner and after allowinga personal hearing pass an appropriate order by governing law and rules expeditiously but not later than two weeks.
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