WP/41284/2022 of M/S. RAJASEKHAR MOVVA Vs SUPERINTENDENT OF CENTRAL TAX on 30 December 2022

HON’BLE SRI JUSTICE U.DURGA PRASAD RAO AND HON’BLE SRI JUSTICE T.MALLIKARJUNA RAO

WRIT PETITION No.41284 of 2022

ORDER: (per UDPR, J)

The petitioner seeks writ of mandamus to set aside the impugned appeal order in Appeal No:GUN-GST-000-APP-103-22-23, dated 18.11.2022 and the registration cancellation orders dated 25.04.2022 in reference No:ZA374022035054Y, which is upheld in the said appeal orders issued by the 2[nd] respondent and for a consequential direction.

2. The petitioner’s case is thus:

(a) Vide reference No.ZA370422035054Y, dated 25.04.2022, the 1[st] respondent cancelled the GST Registration of the petitioner w.e.f., 25.04.2022 for the reason of failure on the part of the petitioner to file returns for a period of six months prior to issuance of the show-cause notice dated 13.04.2022.

(b) Aggrieved thereby, the petitioner filed appeal before the 2[nd] respondent and vide order dated 18.11.2022 in Appeal No.GUN-GST-000-APP-103-22-23, the appeal was dismissed on the sole ground that the appeal was filed with a further delay of two months and ten 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. Accordingly, the appeal was rejected for admission.

Hence, the present writ petition.

3. Learned counsel for petitioner, Sri J.N.Venkata Suresh Kumar, would mainly urge that the petitioner has a good ground to seek for restoration of his registration and in fact, he has mentioned the reasons for non-filing of the returns and on a technical ground that 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. He would thus pray to allow the writ petition and remit the matter back to the primary authority to consider the petitioner’s case and pass appropriate orders. He would rely upon the order of the Division Bench of the High Court for the State of Telangana in W.P. No.27071 of 2022, where under in similar circumstances, the writ petition was allowed and the matter was remitted to the primary authority for reconsideration of petitioner’s case.

4. Sri Suresh Kumar Routhu, learned Senior Standing Counsel for CBIC representing the respondents opposed the writ petition stating that the petitioner has not filed the appeal within the time and instead filed the appeal beyond the condonable period and therefore, the 4[th] respondent has rightly rejected the appeal. Therefore, order of the appellate authority suffer no legal flaw and the writ petition is not maintainable. Learned senior standing counsel would further submit that in case the petitioner’s request is to be considered, the same may be considered by imposing costs.

5. We perused the record and also the decision in W.P. No.27071 of 2022. In similar circumstances, learned Division Bench of the High Court for the State of Telangana having considered the fact that 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 2[nd] respondent therein to reconsider the case of the petitioner and pass appropriate order in accordance with law.

6. Needless to emphasize that the above said decision applies with all its fours to the case on hand. The petitioner preferred appeal but it was rejected for the reasons discussed supra. In that view of the matter and as the GST Tribunal has not been constituted as per the provisions of the Act so as to enable the petitioner to pursue his further legal remedies, in the interest of justice, we consider it apposite to allow the writ petition and remit the matter back to the primary authority i.e., 1[st] respondent to re-consider the case of the petitioner and after affording a personal hearing to him, pass an appropriate order in accordance with law expeditiously but not later than two weeks from the date of receipt of copy of this order. In respect of the submission made by the learned senior standing counsel to impose costs in case the petitioner’s request is to be considered, since the Tribunal has not been constituted for taking further legal course of action and as the delay is two months and ten days, which in our considered view, is not an inordinate one, therefore, we allow the writ petition without inclining to impose any costs.

7. With the above observation, this writ petition is allowed. No costs. As a sequel, interlocutory applications pending, if any, shall stand closed.

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U.DURGA PRASAD RAO, J

30.12.2022 Note: issue C.C. by 05.01.2023. B/o.SS

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T.MALLIKARJUNA RAO, J