Petitioner | Sidhartha Construction |
Respondent | State of Jharkhand |
Decision by | Jharkhand High Court |
Date of order or Judgement | 10-May- 2022 |
Citation no. | W.P.(T) No. 4899 of 2021 2022 (5) GSTPanacea 33 HC Jharkhand |
Hon’ble Judge | Justice Aparesh Kumar Singh Justice Gautam Kumar Choudhary |
Decision | In Favour of Assessee |
Non filing of returns for continuous period of six months. Revocation of cancellation of registration not permitted. However, assessee is allowed liberty to raise his cause of action in respects the garnishee notice issued under Section 79(1)(c) in an independent proceeding.
Non Filing of Returns-Facts of the Case
Non Filing of Returns-Petitioner’s GST Registration Certificate cancelled with effect from 25-10-2019, on the ground of not filing returns for a continuous period of six months by the Petitioner. Whereas the fact is that the Petitioner has filed GSTR-1 returns for the period in question, but could not file GSTR-3B returns due to non reimbursement of the differential amount of tax i.e. 8% of the value of work executed with effect from 1-7-2017 by Jharkhand Rural Road Development Authority. The order of cancellation of G.S.T. registration is, dated 25-10-2019 and the writ petition has been preferred on 27-11-2021 without any explanation for the delay. The garnishee notice under section 79(1)(c) of the JGST Act, 2017 been challenged after 1 year delay. Learned counsel for the petitioner has sought to assail the order of cancellation of registration on grounds of violation of principles of natural justice.
Argument Before Court
Non Filing of Returns-Petitioner’s Contention
The petitioner states that GST Registration Certificate of the Petitioner cancelled without affording adequate opportunity of being heard. Therefore, Petitioner prayed for quashing and setting aside the Notice under section 79(1)(C) of the JGST Act, 2017, on his Bank directing it to remit an amount of Rs. 15,59,952.00 to the GST Department on account of tax, cess, interest and penalty payable by the him. Also direction should be given to Department to start an adjudication proceeding under the provisions of the Act for determination of the alleged liability payable by the Petitioner to the Respondent Department.
Non Filing of Returns-Respondent’s Argument
Respondent have filed a counter affidavit and objected to the maintainability of the writ petition on account of non-exhaustion of alternative remedy of appeal under section 107 of the JGST Act,2017. The respondent opposed the petition as petitioner did not choose to reply to the show cause notice before the adjudicating authority as a result of which registration certificate of the petitioner was cancelled under section 29(2)(c) of the JGST Act.
Jharkhand High Court Held
Non Filing of Returns-The High Court held that there is un-explained gross delay on the part of the petitioner in approaching this Court in writ jurisdiction. The writ petition has been filed after about 2 years of the passing of the order of cancellation of the GST registration. In view of the judgment rendered by the Apex Court in the case of Assistant Commissioner (CT) LTU, Kakinada & Others v. Glaxo Smith Kline Consumer Health Care Limited (2020), the writ petition should not be entertained after the period of availing the alternative remedy of appeal is long over. Since the garnishee notice was issued during the prevalence of lock down period and without any adjudication proceeding, petitioner may be allowed liberty to assail it in a separate proceeding as the petitioner may have the benefit of the extended period of limitation in view order passed by the Apex Court in Suo Motu Writ Petition(Civil) No. 3 of 2020. The writ petition is disposed of accordingly.
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