Tvl.Lucky Mydeen Briyani vs The Commissioner of GST and Central Excise, Madurai Division

The assessee engaged a private accountant for the purpose of filing returns and he alone had access to the GST portal for filing returns. During the Covid-19 Pandemic, the business shut down and further, the petitioner was suffering with ill-health. Hence, the petitioner was unable to conduct the accountant and file his returns. The assessee could not file his GST Returns for continuous period of six months. Department issued SCN on 02-Dec-21 which remained un-replied. In Aug’2022 when the Accountant opened GST Portal, he came to know that GST Registration has been cancelled vide order dated 04-Jan-2022. Assessee attempted to file a representation through online to revoke the cancellation of registration. The same was not accepted, since the request for revocation is not filed within the statutory limitation of 90 (30+60) days. Madras High Court in this matter, considering COVID allowed conditional WRIT Petition

1.The petitioner is a proprietor of Tvl.Lucky Mydeen Briyani served with a notice for cancellation of Registration in Reference No.ZA330122009946T, dated 04.01.2022. The petitioner engaged private accountant for the purpose of filing returns and he alone had the access to the GST portal for filing returns. During the Covid-19 Pandemic, the business shut down and further, the petitioner was suffering with ill-health. Hence, the petitioner was unable to conduct the accountant and file his returns. Thereafter, the petitioner received a show cause notice, dated 02.12.2021 by the second respondent in online for the reason that why the registration shall not be cancelled under Section 29 (2) (C) of the CGST Act, since the petitioner was failed to file the returns for continuous period of six months.

2.He further submits that only during the Month of second week of August 2022, when the private accountant accessed the GSTN, the petitioner came to know that the registration was cancelled by the second respondent vide the impugned order of cancellation of registration, dated 04.01.2022. The petitioner attempted to file a representation through online to revoke the cancellation of registration. The same was not accepted, since the request for revocation is not filed within the statutory limitation of 90 (30+60) days.

3.In such circumstances, the Commissioner of Commercial Taxes in his proceedings in P/35/2021-ADC (RC AND M)-CCT-CTD, dated 07.04.2021 citing the order of the Hon’ble Apex Court directed all the higher officials of the department to direct the proper officers to exclude the period from 15.03.2020 to 28.02.2022 for the purpose of computing the limitation. Further, in support of his contention, he submitted that on similar circumstances in several cases, this Court condoned the delay. He relied on the decision of this Court in the case of Tvl.Suguna Cutpiece Vs Appellate Deputy  Commissioner (ST) (GST) and others (W.P.Nos.25048, 25877, 12738 of  2021 etc.. batch), dated 31.01.2022, wherein, this Court condoned the delay.

4.The learned counsel for the respondent submits that the petitioner has failed to file the returns for continuous period of six months. The show cause notice was issued on 02.12.2021 but the petitioner failed to respond to the show cause notice. After a period of one year, the petitioner attempted to upload in GSTN portal. He further submits that the petitioner has an appeal remedy before the Appellate authority and the petitioner failed to file an appeal but directly approached this Court. Hence, he prayed for dismissal of the writ petition.

5.Considering the submission and perusal of the materials, it is seen that the petitioner during the Covid-19 pandemic period had not filed his returns and thereafter, he had not conducted any business so that he filed only nil returns. Further this case is quite similar to the cases of the petitioners in Tvl.Suguna Cutpiece Vs Appellate Deputy Commissioner (ST) (GST) and  others (W.P.Nos.25048, 25877, 12738 of 2021 etc.. batch), dated 31.01.2022. There some of the petitioner had filed an appeal beyond the period of limitation either for filing application for revocation of cancellation, while some of them had directly filed a writ petition against the order cancelling the registration. While some of them filed appeal beyond the statutory period of limitation, there was further delay in filing the writ petition. However, considering the over all facts and circumstances of the case, it was held that no useful purpose will be served by keeping those petitioners out of the Goods and Services Tax regime, as such assessee would still continue to do business and supply goods/services. By not bringing them back to the Goods and Services Tax fold/regime, would not further the interest of the revenue. Relief was granted under similar circumstances with the following directions: 

6.This Court inclined to allow this writ petition in terms of the above safeguards. Accordingly, this writ petition is allowed subject to the above conditions. No costs.

Download PDF:

For Reference Visit:

Madras High Court 

Read Another Case Law:

GST  Case Law