Facts of the Case
The Petitioner, M/s. GKV Sharma, challenged a
communication dated 29 April 2022, which indicated non-payment of
interest, late fee and penalty, as well as ineligible Input Tax Credit, for the
period from July 2017 to January 2021. The writ petition was filed under
Article 226 of the Constitution of India seeking intervention of the
High Court.
Earlier, the Petitioner’s Registration Certificate had been
cancelled under Section 29 of the Central Goods and Services Tax Act, 2017.
Against such cancellation, the Petitioner had approached the High Court in W.P.(C)
No. 33418 of 2021.
By order dated 1 December 2021, the High Court had
condoned the delay in invoking the proviso to Rule 23 of the CGST Rules,
2017 and directed that, subject to the Petitioner depositing all taxes,
interest, late fee and penalty due and complying with other formalities, the
application for revocation would be considered in accordance with law. The
earlier order further contemplated opening of the portal to enable filing of
GST returns upon compliance with the prescribed conditions.
In compliance with the earlier direction, the Petitioner
deposited:
- Rs.
26,13,132/- towards tax
- Rs.
3,63,990/- towards interest
- Rs.
60,000/- towards penalty
Thereafter, the Petitioner requested the Assistant
Commissioner, GST, Central Excise & Customs to take necessary action in
terms of the High Court’s earlier order. However, according to the Petitioner,
the Opposite Parties failed to implement the direction requiring opening of the
GST portal for filing returns.
The Petitioner further contended that while the earlier writ
petition related to the tax period from July 2019 to September 2019, the
subsequent communication dated 29 April 2022 expanded the alleged period of
non-payment from July 2017 to January 2021.
Issues Involved
The principal issues before the High Court were:
- Whether
the GST authorities were required to revoke the cancellation of the
Petitioner’s Registration Certificate after compliance with the earlier
High Court direction and deposit of the requisite tax, interest and
penalty.
- Whether
the authorities could fail to open the GST portal and prevent filing of
GST returns despite the Petitioner’s asserted compliance with the
conditions imposed by the earlier judicial order.
- Whether
the communication dated 29 April 2022 could refer to alleged non-payment
for the broader period from July 2017 to January 2021 when the earlier
proceedings concerned the period from July 2019 to September 2019.
- Whether
the Proper Officer was required to exercise power under Section 30 of
the CGST Act, 2017 read with Rule 23 of the CGST Rules, 2017 for
revocation of cancellation of registration.
- Whether
the Petitioner was entitled to facilitation for filing GST returns through
opening of the GST portal.
Petitioner’s Arguments
The Petitioner submitted that the earlier cancellation of the
Registration Certificate under Section 29 of the CGST Act, 2017 had
already been challenged in W.P.(C) No. 33418 of 2021.
It was argued that the High Court, by order dated 1 December
2021, had condoned the delay in seeking revocation under the proviso to Rule
23 of the CGST Rules, 2017 and had directed consideration of the revocation
application upon payment of taxes, interest, late fee and penalty and
compliance with other formalities.
The Petitioner asserted that it had complied with the Court’s
direction by depositing Rs. 26,13,132/- as tax, Rs. 3,63,990/- as interest
and Rs. 60,000/- as penalty.
Accordingly, it was argued that the authorities were obliged
to comply with the earlier direction and open the GST portal to enable filing
of returns.
The Petitioner further contended that the earlier writ
petition concerned the period from July 2019 to September 2019, whereas
the subsequent communication dated 29 April 2022 showed alleged non-payment for
the much wider period from July 2017 to January 2021.
The Petitioner maintained that, having deposited the requisite
tax, interest and penalty pertaining to the relevant period, the Opposite
Parties were under an obligation to facilitate filing of returns by revoking
the cancellation of the Registration Certificate.
Respondent’s Arguments
The Opposite Parties were represented by the learned Senior
Standing Counsel for the CT & GST Organization.
Significantly, the learned Senior Standing Counsel did not
object to the proposition advanced by the Petitioner’s counsel.
The Court recorded the concession of counsel for the
respective parties concerning deposit of the requisite amounts pertaining to
the period from July 2019 to September 2019, as per the communication
dated 17 October 2020.
Court Order / Findings
The Orissa High Court observed that the requisite amounts
pertaining to the period from July 2019 to September 2019 had been
deposited, as conceded by counsel for the respective parties and with reference
to the communication dated 17 October 2020.
The Court held that the Opposite Parties were required to
facilitate the Petitioner in filing GST returns by opening the GST portal.
The High Court specifically directed that:
- In
exercise of powers under Section 30 of the CGST Act, 2017 read with
Rule 23 of the CGST Rules, 2017, the Proper Officer shall revoke the
order cancelling the Registration Certificate.
- The
payments asserted by the Petitioner in the writ petition shall be subject
to verification by the Proper Officer.
- Subject
to such verification, the concerned authority shall pass necessary orders
revoking the cancellation of the Registration Certificate.
- The
Petitioner shall be allowed to file GST returns within a period of two
weeks from the date of production of the certified copy of the order.
With these observations and directions, the writ petition was
disposed of.
Important Clarification
The judgment provides an important clarification that where a
taxpayer has complied with the conditions imposed under an earlier judicial
order by depositing the requisite tax, interest and penalty, the GST
authorities are required to act upon such compliance in accordance with law.
The ruling also clarifies that revocation of cancellation
of GST registration under Section 30 of the CGST Act read with Rule 23 of the
CGST Rules must be operationally implemented where the applicable
conditions are satisfied. A direction for revocation would be ineffective if
the taxpayer is not simultaneously facilitated to file the required GST
returns.
However, the relief granted by the Court was expressly made subject
to verification of the payments asserted in the writ petition by the Proper
Officer. Therefore, the decision should not be understood as dispensing
with verification of statutory compliance or payment records.
A further significant aspect is that the earlier proceeding
related to July 2019 to September 2019, whereas the impugned
communication dated 29 April 2022 referred to alleged non-payment for July
2017 to January 2021. The Court’s operative direction focused on the
requisite amounts pertaining to July 2019 to September 2019 and the
consequential revocation and return-filing facility.
Sections and Legal Provisions Involved
Section 29 of the CGST Act, 2017 –
Cancellation or suspension of GST registration.
Section 30 of the CGST Act, 2017 –
Revocation of cancellation of registration.
Rule 23 of the CGST Rules, 2017 –
Procedure governing revocation of cancellation of registration.
Proviso to Rule 23 of the CGST Rules, 2017 –
Referred to in the context of condonation of delay in the earlier proceedings.
Article 226 of the Constitution of India –
Constitutional writ jurisdiction of the High Court.
Related Case Law / Earlier Connected Proceeding
M/s. GKV Sharma – W.P.(C) No. 33418 of 2021, Order
dated 01.12.2021
The present case is directly connected with the Petitioner’s
earlier writ petition, W.P.(C) No. 33418 of 2021. In that proceeding,
the High Court dealt with the cancellation of the Petitioner’s GST Registration
Certificate under Section 29 of the CGST Act.
The High Court had condoned the delay in invoking the proviso
to Rule 23 of the CGST Rules and directed that, subject to payment of taxes,
interest, late fee and penalty due and compliance with other formalities, the
Petitioner’s application for revocation should be considered in accordance with
law.
The earlier order also required the Proper Officer, subject to
compliance by the Petitioner, to open the portal to enable filing of the GST
return.
The present writ petition arose because the Petitioner
asserted that, despite depositing the required amounts and complying with the
earlier order, the authorities had failed to facilitate return filing and
instead issued the communication dated 29 April 2022 referring to alleged dues
over an expanded period.
Thus, the earlier order dated 01.12.2021 formed the direct judicial foundation for the relief granted in the present case.
Link to download the order -https://mytaxexpert.co.in/uploads/1783669248_3056.pdf
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