The Madras High Court directed the petitioner to file an appeal under Tamil Nadu Goods and Service Tax (TNGST Act), 2017 as the GST registration was cancelled due to non-filing of the return. The assessee argued that they had filed a return, in the absence of evidence to prove that the GST department cancelled the Registration.
Rakesh Kumar, the petitioner challenged the impugned order dated 27.02.2023 passed under Rule 22 (3) read with 29 of the TNGST Act, 2017. By the impugned order, the respondent has cancelled the registration of the petitioner. The impugned order precedes a Show Cause Notice in GST REG-17 dated 09.02.2023. The notice states that the petitioner has failed to pay tax, interest and penalty to the Central and State Government for the period beyond three months from the date of which, such payment can be admitted. The petitioner has not filed the returns during October, November and December 2022. After the notice was issued on 09.02.2023, the petitioner claims to have filed a return belatedly on 17.02.2023.
The case of the petitioner is that notice in GST REG-17 is unclear as to where the petitioner should appear for a personal hearing fixed on 17.02.2023. Hence, prays for interference under Article 226 of the Constitution of India.
The Special Government Pleader for the respondent submits that sufficient time was given to the petitioner to reply. However, the petitioner failed to reply and appear for a personal hearing. That apart, the petitioner ought to have applied for revocation of cancellation under Section 30 of the TNGST Act, 2017, which the petitioner failed to do so. That apart, it is submitted that the petitioner has another option to file an appeal before the Appellate Authority under Section 107 of the TNGST Act, 2017, which the petitioner failed to exercise. Hence, the writ petition is liable to be dismissed.
The Special Government Pleader for the respondent has placed reliance on the decision of the Supreme Court in Assistant Commissioner (CT) LTU, Kakinada and others Vs. Glaxo Smith Kline Consumer Health Care Limited, 2020 SCC Online SC 440.
A single judge bench of Justice C. Saravanan observed that the petitioner engaged in Automobile spare parts. It was submitted that the petitioner has filed a return on 17.02.2023. However, there are no records to substantiate the same.
“Be that as it may, the Court is inclined to permit the petitioner to pursue the appellate remedy before the Appellate Commissioner under Section 107 of the TNGST Act, 2017, within 30 days”, the Court held.
The petitioner shall however pre-deposit a sum of Rs.15,000/- along with the appeal over and above any amount that is due from the petitioner which shall be subject to final appropriation/adjustment after the order is passed by the Appellate Commissioner.
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