registration be cancelled by merely
Case Title | Apparent Marketing Private Limited vs State Of U.P. And 3 Others. |
Court | Allahabad High Court |
Honorable Judges | Justice. Jagdish Mishra |
Citation | 2022 (3) GSTPanacea 261 HC Allahabad Writ Tax No.348 of 2021 |
Judgement Date | 05-March-2022 |
Council for Petitioner | Praveen Kumar |
Council for Respondent | Jagdish Mishra |
Section | Section 29 (2) of the Act |
In Favour of | Favour of Assessee |
The Allahabad High Court bench of Justice Jagdish Mishra has held that no registration may be cancelled by merely describing the firm that had obtained it, was “bogus”. Expression may relate may be one appearing under Clauses (c) and (d) of Section 29(2) being where a registered firm does not commence its business within six months and where registration may be cancelled if the registered firm has not furnished its return for continuous period of six months. Those conditions have not been shown to exist in this case.
FACTS OF THE CASE
Writ petition has been filed by the assessee to assail the order dated 12.02.2021 passed by the Appeal Authority in Appeal No. GST/994/2020 for A.Y. 2020-21 and the orders dated 21.08.2020 and 13.08.2020 passed by the Assistant Commissioner, Sector-14, State Tax, Ghaziabad. In short, the assessee applied for and was granted registration under the UP GST Act, 2017 (hereinafter referred to as the ‘Act’) w.e.f. 17.08.2017 for trading in Pan Masala and Tobacco A survey was conducted at the assessee’s business premises on 15.12.2017. Those premises were found closed. Another survey was conducted at the assessee’s business premises on 16.02.2018. However, no adverse material is claimed to have been discovered during that survey proceedings. Besides the above two survey, the assessee claims to have cooperated in certain proceedings against a third party where under it had been summoned under Section 70 of the Act. In the above background, the assessee received a notice through eportal of the revenue department on 22.07.2020 issued under Section 29 of the Act whereby the registration granted to the assessee under the Act was proposed to be cancelled for the following solitary reason “Your firm was found bogus in inspection of SIB. Information received from headquarter.” The assessee was required to furnish its reply within seven working days and to appear before that authority on 24.07.2020 at 11:00 a.m. Undeniably, the assessee did not make compliance of the aforesaid notice. However, no order was passed on 24.07.2020. Also, no further notice was issued to the assessee in that proceeding. On 13.08.2020, the respondent authority cancelled the assessee’s registration without disclosing any further reason. Being aggrieved, the assessee filed an application for revocation of the aforesaid order (under Section 30 of the Act). In response to the above, the assessee received a notice dated 21.08.2020 expressing the tentative opinion of the authority against the grant of revocation. In any case, it required the assessee to furnish its reply to the unspecified notice within seven working days. It was further indicated, upon failure to furnish reply and upon failure to appear for personal hearing on the appointed date and time, the case could be decided ex parte. Remarkably, no date or time was fixed for personal appearance/hearing. In any case, the assessee uploaded its written reply on 21.08.2020 itself. Without issuing any further communication and without fixing any date for personal hearing, on 21.08.2020 itself, the respondent authority passed the order, rejecting the application for revocation of cancellation of registration. Being further aggrieved, the assessee challenged the aforesaid order in appeal. That appeal has also been dismissed. Strangely, the Appeal Authority has chosen to refer to the material now relied upon by the Revenue Authority in the shape of survey report dated 15.12.2017. here is gross violation of principles of natural justice on more than one count. In any case, upon application for revocation of cancellation filed, the respondent authority was obligated to fix a date and time to hear the assessee. Mention of such a direction is also contained in the notice dated 21.08.2020. However, as has been noted above, no date or time was fixed for personal appearance of the assessee As to the second violation of principle of natural justice, it has been submitted, the original show cause notice dated 22.07.2020; the order dated 13.08.2020; notice dated 21.08.2020 and; the further order dated 20.08.2020 are, non-speaking. A mechanical exercise has been offered by the respondent authority and the registration of the assessee cancelled by merely describing it as “bogus”.
registration be cancelled by merely
COURT HELD
Considering the facts as recorded, held that If the respondent proposed to cancel the registration thus granted, a heavy burden lay on the respondent authority to establish the existence of facts as may allow for such cancellation of registration Therefore, the registration once granted could be cancelled only if one of the five statutory conditions was found present as per section 29(2) Per se, no registration may be cancelled by merely describing the firm that had obtained it, was “bogus”. The word “bogus” has not been used by the statute The only contingency to which such expression may relate may be one appearing under Clauses (c) and (d) of Section 29(2) of the Act being where a registered firm does not commence its business within six months Other than that, the term “bogus” may also refer to a satisfaction contemplated by Section 29(2)(c) of the Act where registration may be cancelled if the registered firm has not furnished its return for continuous period of six months Those conditions have not been shown to exist in this case In view of the discussion made above, the charge levelled in the notice dated 22.07.2020 and as was reiterated in the order dated 13.08.2020 and the further notice dated 21.08.2020 are wholly, vague
registration be cancelled by merely
ANALYSIS OF THE JUDGEMENT
Having heard learned counsel for the parties and having perused the record, in the first place, cancellation of registration has serious consequences. It takes away the fundamental right of a citizen etc. to engage in a lawful business activity In the present case, undisputedly, the registration claimed by the assessee had been granted by the respondent authority. Therefore, a presumption does exist as to such registration having been granted upon due verification of necessary facts Yet, in case the authority wanted to cancel the existing registration, it ought to have mentioned (in the show cause notice), if it proposed to cancel the registration for violation of Section 29(2)(c) of the Act or for violation of Section 29(2)(d) of the Act. It cannot be a matter of contemplation or option either with the authority or the assessee to find out for itself by any guesswork or exploratory exercise, if the case fell in any of the conditions of Section 29(2) of the Act.
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