Page No.# 1/29

GAHC010083412024

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THE GAUHATI HIGH COURT

(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)

Case No. : WP(C)/2244/2024

MOTALEB BHUYAN

S/O- LATE IBRAHIM BHUYAN,

PROPRIETOR, HAVING ITS OFFICE AT GURUNANAK NAGAR, NORTH

BONGAIGAON, BONGAIGAON, ASSAM, PIN-783380

VERSUS

THE STATE OF ASSAM AND 3 ORS

REPRESENTED BY THE COMMISSIONER AND SECRETARY TO THE GOVT.

OF ASSAM, FINANCE AND TAXATION DEPARTMENT, DISPUR GUWAHATI

06, ASSAM

2:THE COMMISSIONER OF STATE TAXES

ASSAM

KAR BHAWAN

DISPUR

GUWAHATI-06

3:THE JOINT COMMISSIONER OF STATE TAXES (APPEALS)

ASSAM

KAR BHAWAN

DISPUR

GUWAHATI-06

4:THE ASSISTANT COMMISSIONER OF STATE TAXES

BONGAIGAON-01

BONGAIGAON DHUBRI ZONE

BONGAIGAO

Advocate for the Petitioner : DR ANKIT TODI, MR. D DUTTA,MS M PARBIN,MS S

JITANI,MR A NATH,DR B P TODI Page No.# 1/29

GAHC010083412024

undefined

THE GAUHATI HIGH COURT

(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)

Case No. : WP(C)/2244/2024

MOTALEB BHUYAN

S/O- LATE IBRAHIM BHUYAN,

PROPRIETOR, HAVING ITS OFFICE AT GURUNANAK NAGAR, NORTH

BONGAIGAON, BONGAIGAON, ASSAM, PIN-783380

VERSUS

THE STATE OF ASSAM AND 3 ORS

REPRESENTED BY THE COMMISSIONER AND SECRETARY TO THE GOVT.

OF ASSAM, FINANCE AND TAXATION DEPARTMENT, DISPUR GUWAHATI

06, ASSAM

2:THE COMMISSIONER OF STATE TAXES

ASSAM

KAR BHAWAN

DISPUR

GUWAHATI-06

3:THE JOINT COMMISSIONER OF STATE TAXES (APPEALS)

ASSAM

KAR BHAWAN

DISPUR

GUWAHATI-06

4:THE ASSISTANT COMMISSIONER OF STATE TAXES

BONGAIGAON-01

BONGAIGAON DHUBRI ZONE

BONGAIGAO

Advocate for the Petitioner : DR ANKIT TODI, MR. D DUTTA,MS M PARBIN,MS S

JITANI,MR A NATH,DR B P TODI

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Advocate for the Respondent : SC, FINANCE AND TAXATION,

Linked Case : WP(C)/3683/2024

M/S C ZAR TECHNOLOGIES AND ANR

A PARTNERSHIP FIRM HAVING ITS REGISTERED OFFICE AT HOUSE NO.77

WALTAS LANE

NOTUN SARANIYA

GUWAHATI

KAMRUP METRO

REPRESENTED THE PETITIONER NO.2

2: SRI ABHILASH BAROOAH

SON OF LATE CHANDAN BAROOAH B1

RADHAKUNJ APARTMENT

LAXMINAGAR

RGB ROAD

GUWAHATI

KAMRUP METRO

ASSAM- 781005

VERSUS

THE STATE OF ASSAM AND 3 ORS

COMMISSIONER AND SECRETARY TO THE GOVERNMENT OF ASSAM

FINANCE DEPARTMENT

DISPUR

ASSAM

2:THE COMMISSIONER AND STATE GOODS AND SERVICE TAX

GUWAHATI

KAR BHAWAN

GANESHGURI

DISPUR

GUWAHATI- 781006

ASSAM

3:THE ASSISTANT COMMISSIONER OF STATE TAX

GUWAHATI C-4

KAR BHAWAN

GUWAHATI-06

ASSAM

4:JURISDICATION OFFICER

GUWAAHATI-C-4

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GUWAHATI-C

KAR BHAWAN

GUWAHATI-06

ASSAM

------------

Advocate for : MR. R S MISHRA

Advocate for : SC

FINANCE AND TAXATION appearing for THE STATE OF ASSAM AND 3 ORS

Linked Case : WP(C)/2695/2024

KAMAIAH ENGINEERING SERVICES PRIVATE LIMITED (OPC)

2ND FLOOR

EPITOME BUILDING

G.N.B. ROAD

SILPUKHURI

KAMRUP (M)

GUWAHATI

ASSAM- 781003

REPRESENTED BY ITS DIRECTOR SHRI KODA SUDHAKAR RAO

VERSUS

THE STATE OF ASSAM AND 3 ORS

THROUGH THE COMMISSIONER AND SECRETARY TO THE GOVT OF ASSAM

MINISTRY OF FINANCE AND TAXATION

KAR BHAWAN

GANESHGURI

GUWAHATI ASSAM

2:THE PRINCIPAL COMMISSIONER OF STATE TAXES

ASSAM

ASSAM

KAR BHAWAN

G.S.ROAD

DISPUR

GUWAHATI-06

3:THE JOINT COMMISSIONER OF STATE TAXES (APPEALS)

GUWAHATI

KAR BHAWAN

DISPUR

GUWAHATI

ASSAM-6

Page No.# 4/29

4:THE COMMERCIAL TAX OFFICER (SUPERINTENDENT OF TAXES)

GUWAHATI-A-6

KAR BHAWAN

GUWAHATI-6

------------

Advocate for : MS. M L GOPE

Advocate for : SC

FINANCE AND TAXATION appearing for THE STATE OF ASSAM AND 3 ORS

Linked Case : WP(C)/4500/2024

MONI KANTA DAS

SON OF LATE MOHAN CH. DAS

RESIDENT OF KATHALGURI VILLAGE NO.1

P.O.- NAGAJAN

P.S.- DULIAJAN

DIST.- DIBRUGARH

PIN- 786191.

VERSUS

UNION OF INDIA AND 3 ORS

REPRESENTED BY THE SECRETARY OF GOVERNMENT OF INDIA

MINISTRY OF FINANCE

NEW DELHI- 110001.

2:THE PRINCIPAL COMMISSIONER OF CENTRAL GOODS AND SERVICES

TAX

GST BHAWAN KEDAR ROAD

GUWAHATI- 781001.

3:THE ASSISTANT COMMISSIONER

CENTRAL GOODS AND SERVICE TAX

DIBRUGARH DIVISION DIBRUGARH.

PIN- 786001.

4:THE SUPERINTENDENT

CENTRAL GOODS AND SERVICES TAX

TINSUKIA ZONE

NAHARKATIA

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DIST.- TINSUKIA

ASSAM.

PIN- 786610.

For the Petitioner(s) : Dr. B. P. Todi, Sr. Advocate

: Dr. A. Todi, Advocate

: Mr. N. Hawelia, Advocate

: Mr. A. Khanikar, Advocate

: Mr. R. S. Mishra, Advocate

For the Respondent(s) : Mr. S. C. Keyal, Standing Counsel

: Mr. B. Gogoi, Standing Counsel

Date of Hearing : 28.11.2024

Date of Judgment : 11.03.2025

BEFORE

HONOURABLE MR. JUSTICE DEVASHIS BARUAH

JUDGMENT AND ORDER (CAV)

Heard Dr. B. P. Todi, the learned Senior counsel assisted by Dr. A.

Todi, the learned counsel appearing on behalf of the petitioner in

WP(C) No.2244/2024; Ms. N. Hawelia, the learned counsel appearing

on behalf of the petitioner in WP(C) No.2695/2024; Mr. R. S. Mishra,

the learned counsel appearing on behalf of the petitioners in WP(C)

No.3683/2024 and Mr. A. Khanikar, the learned counsel appearing on

behalf of the petitioner in WP(C) No.4500/2024. I have also heard Mr.

S. C. Keyal, the learned Standing counsel appearing on behalf of the

CGST and Mr. B. Gogoi, the learned Standing counsel appearing on

behalf of the Finance and Taxation Department of the Government of

Assam.

2. The issues involved in the batch of 4 (four) writ petitions primarily

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related to the cancellation of the registrations under Central Goods and

Service Tax Act, 2017 and State Goods and Service Tax Act, 2017. The

question which arises for consideration before this Court is as to

whether this Court should interfere with the cancellation of the

registrations or in other words, revoke the cancellation of the

registrations in the respective facts of the cases before this Court.

Under such circumstances, it is relevant to narrate the relevant facts

which led to the filing of the instant batch of writ petitions before this

Court.

WP(C) No.2244/2024:

3. The petitioner herein claims to be a proprietor of a firm in the name

and style of M/S M. Bhuyan. The petitioner was registered under the

provisions of the Central Goods and Service Tax Act, 2017 (for short

‘the Central Act’) and was issued a certificate of registration on

20.09.2017. The petitioner was also granted a Registration Number

bearing No. 18AJBPB2744A1ZY.

4. It is the case of the petitioner that the petitioner is in the business of

contractual works of supplying of various products. A show cause

notice was issued for cancellation of the registration upon the

petitioner on 06.11.2019 asking the petitioner to submit a reply within

seven days from the date of service of the said notice. The said show

cause notice is enclosed as Annexure-2 to the writ petition and the

reason assigned therein “Any taxpayer other than composition

taxpayer has not filed returns for a continuous period of six months”.

The petitioner claims that there was no personal notice issued to the

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petitioner and was simply uploaded in the website by the Proper

Officer. It is the further case of the petitioner that the petitioner having

no proper notice, did not submit any reply.

5. Subsequent thereto, on 18.11.2019, the registration of the petitioner

was cancelled. The cancellation of the registration has been enclosed

as Annexure-3 to the writ petition. It is relevant to take note of that a

perusal of the said order for cancellation of registration refers to two

contradictory aspects. One, there is a reply submitted by petitioner on

17.11.2019 and the other that there is no reply to the said show cause

notice. Apart from that there is no other reason assigned.

6. It is the case of a petitioner that the petitioner came to learn about the

suspension and cancellation of its registration in the month of

February, 2021 inasmuch as, it is the further case of the petitioner that

for the period from November, 2019 on account of financial constraint

and also due to the COVID-19 pandemic, he could not coordinate with

his tax consultant. Be that as it may, the petitioner could file his return

in Form GSTR-1 on 24.03.2021 but the Petitioner was unable to pay

the due taxes due to the ongoing financial constraint. The petitioner

further states that the petitioner had filed and updated his due return

in GSTR-3B on 09.03.2024 for the month of November, 2019 and paid

taxes for the period till November, 2019. Be that as it may, as the

period seeking revocation under Section 30 of the Assam Goods and

Service Tax Act, 2017 (for short ‘the State Act’) had expired, the

petitioner preferred an Appeal under Section 107 of the State Act read

with Rule 108(3) of the Assam Goods and Service Tax Rules, 2017

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(hereinafter referred to as the ‘State Rules’). The said Appeal upon

being filed was registered and numbered as FORM GST APL-01 on

12.03.2024. The said appeal was rejected by the Appellate Authority

i.e. the Joint Commissioner of State Taxes Appeals vide an order dated

06.04.2024 on the ground of delay and it is under such circumstances,

the petitioner had approached this Court by filing the present petition.

7. It is seen that this Court issued notice on 29.04.2024. It is irrelevant to

take note of that on 11.09.2024, an affidavit-in-opposition was filed by

the Commissioner of Taxes, Assam through the Joint Commissioner of

Taxes, Assam. In the said affidavit-in-opposition, it was mentioned that

the order against which the appeal was preferred was passed on

18.11.2019 and the appeal having been filed after four years on

12.03.2024, the Appellate Authority could not have condoned the delay

even if satisfied with the grounds in view of Section 107(4) of the State

Act. It was also mentioned that if the petitioner was continuing with

his business, he should close the earlier registration by filing the final

return as per the provisions of the State Act by paying all his dues as

per the return and thereafter obtain fresh registration.

8. To the said affidavit-in-opposition, an affidavit-in-reply was submitted

wherein at paragraph No.8, it was categorically mentioned that in the

event the Registration Certificate is not restored, the petitioner would

be denied of his right to livelihood which would be in violation to

Article 21 of the Constitution. It was further mentioned that there is no

provision under the Central Act as well as the State Act for re-

application of a fresh Registration Certificate and in absence of a

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Registration Certificate, the petitioner would not be able to raise any

bills/invoices or enter into any contractual works which would affect

the right of the petitioner to earn a livelihood. Additionally, it was

mentioned that even if there is a new registration, the petitioner would

be denied the Input Tax Credit which is available and accumulated

under the present cancelled registration certificate.

WP(C) No.2695/2024:

9. The petitioner herein is an OPC Company which is duly registered

under the State Act and was issued a Registration Certificate bearing

Registration No.18AAGCK0367D1ZP. The said registration was issued

on the 26.09.2017. It is the case of the petitioner that the petitioner

was regularly filing its returns under the respective provisions of the

Central Act and State Act. There was no difficulty in the filing of the

returns till the year 2020. However, on account of the COVID-19

pandemic, the parents of the tax consultant of the petitioner namely

Shri Dibyajyoti Das had expired. The petitioner though had remitted

the amounts to the consultant but the consultant did not take any

steps for filing of the returns. In that regard, the petitioner has

enclosed the documents evidencing payment of the amounts to the

consultant as Annexure-II (series). Be that as it may, as there was no

returns filed by the consultant, it was shown in the GSTN portal

account of the petitioner that the show cause notice was issued on

29.06.2021. The petitioner could not however download the said show

cause notice and the petitioner further avers in the writ petition that till

the date of filing of the writ petition, the petitioner was not in a

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position to download the said show cause notice. A screenshot of the

downloaded portal showing the issuance of a show cause notice dated

29.06.2021 is enclosed as Annexure-III. Thereupon, on 17.07.2021,

the Proper Officer issued an order thereby cancelling the GST

Registration of the petitioner. It is the case of the petitioner that from a

perusal of the said order dated 17.07.2021, it would be seen that there

was no due payable by the petitioner.

10. The order of cancellation was enclosed as Annexure-IV to the writ

petition. A perusal of the order dated 17.07.2021 would show that a

contradictory stand was taken. On one hand it has been mentioned

that there is a reply submitted by the petitioner on 08.07.2021 and on

the other hand, it has been mentioned that there is no reply submitted

to the show cause notice dated 29.06.2021. No other reasons assigned

as regards cancellation.

11. The petitioner thereupon filed an appeal by engaging a different

consultant taking into account that the earlier consultant did not take

any steps. The Appeal was registered and numbered as GST APL-01.

The appeal was however dismissed vide an order dated 25.04.2024 on

the ground that the said appeal was filed beyond the period of

limitation and it is under such circumstances, the petitioner has

approached this Court by filing the present writ petition.

12. This Court duly takes note of the fact that pursuant to the filing of the

instant writ petition, on 28.06.2024 notice was issued. The record

reveals that an affidavit-in-opposition was filed by the Commissioner of

Taxes through the Joint Commission of Taxes, Assam. In the said

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affidavit-in-opposition, it was mentioned that as the petitioner did not

furnish returns and paid the due taxes to the State for more than six

months, the show cause notice was issued on 29.06.2021. It was

further mentioned that show cause notices are issued under the GST

regime through the portal only without any interface with the taxpayer.

However, the petitioner neither paid the tax nor furnished the reply to

the show cause notice within the stipulated time and as such, its

registration was cancelled on 17.07.2021. Further to that, the petitioner

did not take any steps for revival. The Appeal which was filed was also

delayed by more than two years and such period cannot be condoned

in terms with Sub-Section (1) and Sub-Section (4) of Section 107 of

the State Act by the Appellate Authority. It was further mentioned that

the petitioner therefore should close the earlier registration by filing the

return as per the provisions of the State Act by paying all its dues and

thereafter obtain a fresh registration and in that process, the provisions

of the State Act would not be violated and the Government would get

due revenue from the petitioner.

13.No reply was filed to the said affidavit-in-opposition by the petitioner.

WP(C) No.3683/2024:

14. The petitioner No.1 herein is a partnership firm and the petitioner No.2

is one of the partners. The petitioner No.1 is an assessee registered

under the State Act bearing Registration No. 18AAEFC7833K3Z3. The

said registration was issued on 25.09.2017 in favour of the petitioner

No.1. During the period of COVID-19 pandemic, a show cause notice

was issued to the petitioner No.1 on 11.02.2021 by the Proper Officer.

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The said show cause notice has been enclosed as Annexure-B to the

writ petition. The reason cited in the said show cause notice is “Any

taxpayer other than composition taxpayer has not filed returns for a

continuous period of six months”. The petitioner No.1 was asked to

submit its reply within 30 days from the date of service of the said

notice and further, a date of hearing was fixed on 22.03.2021 at 11

AM.

15. Similar to the earlier two writ petition being WP(C) No.2244/2024 and

WP(C) No.2695/2024, an order was passed on 23.03.2021 by the

Proper Officer wherein contradictory aspects were mentioned to the

effect that the petitioner No.1 had submitted a reply on 23.03.2021 as

well as the petitioner No.1 had not submitted any reply to the show

cause notice. There is no reasons assigned in the order for cancellation

of the registration. Be it as it may, it is the case of the petitioners that

at that relevant time, as COVID-19 pandemic restrictions were going

on, the office of the petitioners was closed and the petitioner No.2

could not visit the GST portal. It is the further case of the petitioners

that the petitioners post the COVID-19 pandemic, arranged funds and

filed their returns up to March, 2021 as allowed by the GST portal.

16. It is also the case of the petitioners that while updating the returns, the

petitioners have deposited an amount of Rs. 12,00,190/- towards tax

and late fees. It is seen that these returns were filed on 05.07.2024 as

would appear from Annexure-D (Colly). The petitioners thereupon tried

to file an application for revocation of the cancellation of the

registration but when such attempts were made, it was shown in the

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portal screen that the timeline of 270 days from the date of

cancellation of the order provided to the taxpayer to file their

application for Revocation of Cancellation had expired. The petitioners

initially thought of filing an Appeal in terms with Section 107 of the

Central Act but taking into account the provisions of Sub-Section (1)

and Sub-Section (4) of Section 107 of the Central Act, filing of an

appeal would not be an alternative and efficacious remedy, for which

the petitioners have approached this Court.

17. This Court by an order dated 26.07.2024 issued notice. Pursuant

thereto, an affidavit-in-opposition was filed by the respondent No.2

wherein it was mentioned that as the petitioners did not furnish any

returns due to the State for more than six years, the show cause notice

was issued on 11.02.2021. It was mentioned that the petitioners then

also did not pay the tax and also did not submitted the reply to the

show cause notice and it was under such circumstances, the

registration was cancelled on the 23.03.2021. It was further mentioned

that though the registration was cancelled on 23.03.2021, the

Petitioners continued to do its business without taking any recourse to

revive its registration and also not depositing the due tax to the State

Exchequer. It was also mentioned that the petitioners have approached

this Court in the year 2024 i.e. after three years from the cancellation

of the registration and under such circumstances, the petitioners ought

to close down its earlier registration by filing final return as per the

provisions of the State Act by paying all their dues in the said return

and thereafter obtain fresh registration.

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18. To the said affidavit-in-opposition, a reply was filed by the petitioners

on 26.09.2024 wherein it was mentioned that the petitioners had

already complied with all its defaults and have made payment of GST

amount by filing GST returns till March, 2021 as allowed by the GST

portal and is ready and willing to pay any amount which is legally

payable on the part of the petitioners. It was further stated by the

petitioners in the affidavit-in-reply that as the GST Registration Number

of the Petitioner No.1 is already available with the existing vendors and

the parties with whom the Petitioner No.1 had earlier conducted

business transactions and also intended to conduct future business

transactions after the revival of the GST registration, it would cause

great inconvenience if the GST registration is not revived. It was

further stated that it would not prejudice the Government rather, if the

cancellation of the GST registration is revoked, the petitioners would

have to file their return from April, 2021 to till date for which the State

Exchequer would be getting the revenue as well as the late fees.

WP(C) No.4500/2024:

19. The petitioner herein is in the business of execution of maintenance

work contract with the Oil India, Duliajan and in that regard, his firm in

the name and style of “Moni Kanta Das” was registered under the

Central Act bearing Registration No.18ADPFS9101C1Z0 and the

registration certificate was issued on 18.05.2018. It is the further case

of the petitioner that the petitioner continued to file his returns in due

time. However, on 05.01.2021, a show cause notice was issued by the

Proper Officer whereby the petitioner was asked to submit the reply

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within seven days from the date of service of the said notice.

20. It is the further case of the Petitioner that he did not submit a reply as

he was not much conversant with the online procedure. Be that as it

may, on 10.02.2021, the registration of the petitioner was cancelled. In

this case also, the order of cancellation refers to a reply dated

17.01.2021 filed by the petitioner and it was further mentioned that

upon examination of the reply by the petitioner and the submissions

made at the time of hearing, the registration was cancelled for returns

having not been filed. The petitioner on account of the COVID-19

pandemic could not take further steps. However, subsequently on

29.07.2024, the petitioner submitted his returns up to February, 2021

as was allowed by the GST portal.

21. Pursuant to the filing of the returns, the petitioner tried to take steps

for revocation of the cancellation of the registration which was not

permitted for the reason that the timeline of 270 days from the date of

cancellation order provided to the taxpayer to file application for

revocation of cancellation had expired. The petitioner had not filed any

Appeal on the ground that as the period for filing of the Appeal and the

maximum period that can be condoned had expired in terms with

Section 107 of the Central Act, the Appeal, if filed by the Petitioner

cannot be taken up on merits. As such, the Petitioner has approached

this Court by filing the instant writ petition.

22. It is seen that this Court vide an order dated 06.09.2024 issued notice.

The respondents have not filed their affidavit till the time the matter

was taken up for hearing.

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23. This Court had heard the learned counsels for the petitioners and

perused the materials. The submissions so made by the learned

counsels are in terms with the pleaded case of both the parties and as

such for the sake of brevity, this Court is not repeating the same.

ANALYSIS AND DETERMINATION :

24. In the backdrop of the above, the question which arises as to whether

this Court should exercise its jurisdiction under Article 226 of the

Constitution to interfere with the orders of cancellation of the

registration. To decide the said aspect of the matter, it is therefore

relevant to take note of some of the provisions of the Central Act which

are pari materia to the State Act as well as the Rules framed therein

under.

25. Chapter-VI of the Central Act specifically deals with Registration.

Section 22 and 24 of the Central Act stipulates the categories of

persons who are liable to be registered. Section 23 refers to those

category of persons who are not liable to be registered. Section 25

stipulates the procedure for registration.

26. It is relevant to take note of that Sub-Section (1) to Sub-Section (7) of

Section 25 of the Central Act which deals specifically with the

procedure as to when a person is liable to be registered under Section

22 or 24 applies for registration. However, Sub-Section (8) of Section

25 is very relevant inasmuch as, if a person who is liable to be

registered under Section 22 and 24 fails to obtain registration, the

Proper Officer may, without prejudice to any action which may be

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taken under the Act or under any other law for the time being in force,

proceed to register such person in such manner as may be prescribed.

27. The prescription is in Rule 16 of the Central Goods and Service Tax

Rules, 2017 (for short ‘the Central Rules’). This aspect is important,

taking into account that if a person falls within the categories

mentioned in Section 22 and 24 of the Central Act, even if he fails to

obtain registration, can be suo moto registered by the Proper Officer by

following the mandate of Section 25(8) read with Rule 16 of the

Central Rules.

28. This Court further finds it relevant to take note of Section 122 of the

Central Act and more particularly Clause - (xi), which stipulates that

when a taxable person who is liable to be registered under the Act but

fails to obtain registration, he is liable to pay a penalty as stipulated in

the said Section.

29. The combine reading of Sections 22, 24, 25 and 122 of the Central Act

is that the person who is categorized in Sections 22 and 24 is

compulsorily liable to be registered in the manner stipulated in Section

25 of the Central Act. It is further seen that if a person is not

registered, the Proper Officer can suo moto register him by following

the mandate of Rule 16 of the Central Rules. Additionally, Section 122

imposes penalty, if a person fails to obtain registration.

30. It is relevant to take note of Section 29 which relates to cancellation or

suspension of registration. Sub-Section (1) and Sub-Section (2) of

Section 29 of the Central Act stipulates the different conditions when

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the Proper Officer can exercise its power to cancel a registration. The

present case falls within Sub-Section (2) of Section 29. The said Sub-

Section (2) of Section 29 of the Central Act is reproduced herein under:

“29.(2) The proper officer may cancel the registration of a person from such

date, including any retrospective date, as he may deem fit, where – (Refer to

Rules 21, 21A & 22)

(a) a registered person has contravened such provisions of the Act or

the rules made thereunder as may be prescribed; or

(b) a person paying tax under section 10 has not furnished [the return

for a financial year beyond three months from the due date of furnishing

the said return]; or

(c) any registered person, other than a person specified in clause (b),

has not furnished returns for [such continuous tax period as may be

prescribed]; or

(d) any person who has taken voluntary registration under sub-section

(3) of section 25 has not commenced business within six months from the

date of registration; or

(e) registration has been obtained by means of fraud, willful

misstatement or suppression of facts:

Provided that the proper officer shall not cancel the registration without giving the

person an opportunity of being heard.

[Provided further that during pendency of the proceedings relating to cancellation

of registration, the proper officer may suspend the registration for such period and

in such manner as may be prescribed]”

31. It would be seen from the above quoted Sub-Section that a Proper

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Officer may cancel the registration of a person from such date

including any retrospective date as he may deem fit when any of the

conditions stipulated in Sub-Clauses (a) to (e) are satisfied. However,

to exercise the said power, the Proper Officer is required to give an

opportunity of hearing to the person.

32. At this stage, it is further relevant to take note of that the Proper

Officer in order to cancel the registration has to take note of the

procedure as stipulated in Rule 22 which stipulates that the Proper

Officer shall issue a notice to such person in FORM GST REG-17

requiring him to show cause within a period of seven working days

from the date of service of such notice as to why his registration should

not be cancelled. This Court duly takes note of the FORM GST REG-7

which is a statutory form. The proforma notice as it appears, stipulates

that the Proper Officer has information which had come to his notice

that the registration is liable to be cancelled for the reasons to be

categorically specified. The Proper Officer thereupon has to give an

opportunity to furnish a reply within the period of seven working days

from the date of service of the notice and further fix a date for

appearance before him.

33. It is further seen that the reply to the show cause notice has to be

submitted in FORM GST REG-18. The order to be passed if the

registration is to be cancelled is in FORM GST REG-19 within 30 days

from the date of reply to the show cause notice and further the Proper

Officer has to determine the tax, interest or penalty including the

amount liable to be paid under Sub-Section (5) of Section 29 of the

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Central Act in the said order to be passed in FORM GST REG-19.

34. It is further relevant to take note of Sub-Rule (4) of Rule 22, which

stipulates that if the reply so submitted is found satisfactory, the Proper

Officer shall drop the proceedings and pass an order in FORM GST

REG-20. The proviso to Sub-Rule (4) of Rule 22 further stipulates that

where the person, instead of replying to the notice served under Sub-

Rule (1) for contravention of the provisions contained in Clause (b) or

(c) of Sub-Section (2) of Section 29, furnishes all the pending returns

and make full payment of tax dues along with applicable interest and

late fee, the Proper Officer shall drop the proceeding and pass an order

in FORM GST REG-20.

35. This Court further finds it relevant to take note of Sub-Section (3) of

Section 29 which stipulates that the cancellation of the registration

under Section 29 shall not affect the liability of the person to pay tax

and other dues under the Act or to discharge any obligations under the

Act or the Rules made thereunder for any period prior to the date of

cancellation, whether or not such tax or other dues are determined

before or after the date of cancellation.

36. Therefore, from a conjoint reading of Section 29 with Rule 22 and the

FORMS GST REG-17, GST REG-18, GST REG-19 and GST REG-20 would

show that the Proper Officer can cancel the registration under Sub-

Section (2) of Section 29 only on the grounds stipulated in Sub-Clauses

(a) to (e) of Section 29(2) and before doing so, an opportunity of

hearing has to be given to the person. Sub-Section (3) of Section 29

further stipulates that till the date of cancellation of the registration,

Page No.# 21/29

the person in whose favour the registration was, has to pay tax and

other dues under the Act or to discharge any obligations under the Act

or the Rules made thereunder. It would also transpire from a reading of

Rule 22 of the Central Rules that not only show cause notice is

required to be issued in the format as stipulated in FORM GST REG-17

but also a date of hearing is required to be fixed. Therefore, it would

be seen that the opportunity which is to be granted has to be an

opportunity in real sense and not a mere formality. Further to that, it is

a well settled principle of law that when a show cause notice is issued,

the show cause notice has to specify clearly and without any ambiguity

the reasons as to why the show cause notice have been issued in

terms with FORM GST REG-17. It is trite that if the said show cause

notice is vague, the very initiation of the proceedings on the basis of

the said show cause notice would become redundant. More so, when a

combine reading of the aforementioned provisions clearly stipulate that

the person has to be given an opportunity to be heard and this

opportunity of giving a hearing includes an issuance of a show cause

notice and a personal hearing.

37. It would further show from a further reading of Section 29 read with

Rule 22 of the Central Rules and the statutory form being FORM GST

REG-19 as it stood at the time when the impugned orders of

cancellation of the registration were passed that the order of

cancellation has clearly reflect the reason as to why the registration is

cancelled and further indicate to what amount of tax, interest and

penalty, etc., the person is liable prior to the date of cancellation of the

registration.

Page No.# 22/29

38. This Court further finds it relevant to take note of Section 30 of the Act

of the Central Act which deals with revocation of the cancellation of the

registration. Section 30 provides an avenue to the person whose

registration has been cancelled to seek revocation of the cancellation of

registration in the prescribed manner within 30 days from the date of

service of the cancellation order. This was the position prior to

01.10.2023 but subsequently with effect from 01.10.2023, the person

whose registration is cancelled may apply to such officer for revocation

of the cancellation of registration in such manner, within such time and

subject to such conditions and restrictions as may be prescribed. In the

instant batch of writ petitions, there was no application filed for

revocation in view of the mandate of Rule 23 as it stood post

01.10.2023 whereby it has been mandated that the period within

which such an application can be filed cannot be filed beyond 270

days. Under such circumstances, the avenue of revocation of the

cancellation of the registration certificate was not available to the

petitioners in the batch of writ petitions as no steps were taken within

the period of 270 days.

39. Be that as it may, this Court finds it very pertinent to take note of the

second and third proviso to Rule 23(1) of the Central Rules. The said

two provisos being relevant are reproduced herein under:

“Provided further that no application for revocation shall be filed, if the

registration has been cancelled for the failure of the registered person to

furnish returns, unless such returns are furnished and any amount due as

tax, in terms of such returns, has been paid along with any amount

payable towards interest, penalty and late fee in respect of the said

Page No.# 23/29

returns:

Provided also that all returns due for the period from the date of the

order of cancellation of registration till the date of the order of revocation

of cancellation of registration shall be furnished by the said person within

a period of thirty days from the date of order of revocation of cancellation

of registration:”

40. The above quoted two provisos shows that a person can only file an

application seeking revocation if that person has furnished the returns

and paid any amount due as tax in terms of the returns, along with

amount payable towards interest and penalty and late fee in respect to

the said returns. In other words, the provision of revocation of

cancellation of a registration is only available when the person

concerned submits his returns and also pays the amount due as tax,

interest, penalty and late fee in respect to the such returns. The third

proviso to Rule 23(1) is also relevant inasmuch as it provides that all

returns due for the period from the date of order of cancellation of

registration till the date of the order of revocation of cancellation of

registration shall be furnished by the said person within a period of 30

days from the date of order of revocation of the cancellation of

registration. This third proviso to Rule 23(1) is relevant to be taken

note of inasmuch as in the event this Court observes that this is the fit

case for interference to the cancellation of the registration, this Court

would be required to pass appropriate orders to the effect that for the

period from the date of cancellation of the registration till the date of

revocation of the cancellation of the registration, the petitioners herein

would be liable to furnish all returns within a period of 30 days from

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the date of revocation of the cancellation of the registration.

41. This Court further takes note of Section 107 of both the State Act and

the Central Act which stipulates that any person aggrieved by any

order passed under the State or the Central Act by an adjudicating

authority may appeal to such Appellate Authority as may be prescribed

within three months from the date on which the said decision or order

is communicated to such person. It is further seen from Sub-Section

(4) of Section 107 that the Appellate Authority had been only

empowered to condone the period by another one month and nothing

more.

42. In this context, it is relevant to take note of that in the instant batch of

petitions, two of the writ petitioners have preferred appeals and those

appeals have been dismissed by the Appellate Authority as the delay in

preferring the appeal is more than the period permitted under Section

107 to the Appellate Authority to condone the delay. It is the opinion of

this Court that the orders by which the Appellate Authority had rejected

the appeals in the case of two petitioners who have preferred the

appeals do not call for interference as they had exercised the power in

tune with Section 107 of the Central Act.

43. Be that as it may, the question arises in the instant proceedings as to

whether the impugned orders of cancellation of the registration were

bad in law and violated to the provisions of the Central Act or the State

Act or the Rules framed therein under.

44. In the foregoing paragraphs of the instant judgment, this Court has

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duly taken note of the show cause notices which were issued. The said

show cause notices do not specifically state the reasons as to why the

Proper Officer was of the opinion that the registration of the petitioner

is required to be cancelled. There is no mention of the period when the

returns have not been filed. It appears from a perusal of the show

cause notices enclosed to the writ petitions except WP(C)

No.2695/2024 that the Proper Officer mechanically issued the said

show cause notice.

45. In the case of WP(C) No.2695/2024, the petitioner has specifically

averred that the petitioner could not access to the show cause notice

and the respondents have also not brought on record the said show

cause notice. Under such circumstances, this Court is of the opinion

that the show cause notices were vague. In that view of the matter, as

the show cause notices were vague, the orders by which the

registrations were cancelled cannot be sustained in law.

46. This Court has also perused the orders of cancellation impugned in the

present proceedings. It is also relevant to take note of that admittedly

the petitioners have not submitted any reply but most surprisingly the

Proper Officer referred in the impugned orders of cancellation of the

registration about replies being filed. In fact, the Proper Officer appears

to have been confused whether any reply has been filed or not. It

appears that the Proper Officer most mechanically passed the orders of

cancellation even without caring to the strike out the portion which was

not required in the statutory forum in FORM GST REG-19. In fact, it

surprises this Court as to how mechanically the jurisdiction was

Page No.# 26/29

exercised by the Proper Officer. It is trite principle of law that when a

jurisdiction is conferred upon the Authority with a specific mandate

how the jurisdiction is to be exercised and if the authority fails to

exercise his jurisdiction as per the stipulated mandate, it is to be

deemed that the said Authority had not exercised the jurisdiction at all.

47. Further to that, there is also no reason assigned for cancellation of the

registration in WP(C) No.2244/2024, WP(C) No.2695/2024 and WP(C)

No.3683/2024. However, in WP(C) No.4500/2024, there is a reason

assigned that returns were not filed. Be that as it may, taking into

account the perfunctory and mechanical manner in which the Proper

Officer has exercised his jurisdiction, this Court is of the opinion that

the orders of cancellation of the registration challenged in the batch of

writ petitions are required to be interfered with.

48. This Court cannot also be unmindful of the fact that the registrations

were cancelled in the cases of the petitioners herein sometime in the

years 2019 and 2021 and the petitioners have filed their returns for the

period prior to cancellation only in the year 2024. There are allegations

made by the respondents that the petitioners continued to run their

business in the meantime. In addition to that, this Court also takes

note of that these writ petitions were filed in the later part of 2024 i.e.

after almost three years and in respect to WP(C) No.2244/2024 after

five years.

49. This Court had in the previous segments of the instant judgment

referred to the third proviso to Rule 23(1) of the Central Rules which

categorically stipulates that upon revocation of the cancellation of

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registration, the assessee is required to file his returns within 30 days

for the period from the date of cancellation to the date of revocation of

the cancellation. In view of this Court opinioning that the orders of

cancellation of registration are required to be interfered with, the

petitioners herein would now be required to file their annual returns for

the various financial years till date. This Court has also taken note of

the provisions of Section 73(10) of the Central Act/State Act which

stipulates that the Proper Officer can issue the order under Section

73(9) of the Central Act/State Act within 3 years from the due date for

furnishing the annual returns. It is also apposite to mention that in

terms with Section 73(2) of the Central Act/State Act, the Proper

Officer has to issue notice three months prior to the time limit specified

in Section 73(10) of the Central Act/State Act. Therefore, it is the

opinion of this Court that in order to balance the equities, it is required

that the date of furnishing the annual return be appropriately

extended. In that view of the matter, this Court declares that in respect

to the Petitioners in the present batch of writ petitions, the period for

submission of the annual returns would be the date of the instant

judgment except for the period 2024-2025 which would be in terms

with Section 44 of the Central Act/State Act.

50. In that view of the matter, the instant batch of writ petitions are

disposed off with the following observations and directions:

(i) The order of cancellation of registration dated 18.11.2019

challenged in WP(C) No.2244/2024 is set aside and quashed. The

petitioner herein is directed to file the returns for the period from

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the date of cancellation of the registration i.e. 18.11.2019 till date

within 30 days from the date of the instant judgment. The period

as stipulated in Section 73(10) of the Central Act/State Act shall

be computed from the date of the instant judgment except for

the financial year 2024-25 which shall be as per Section 44 of the

Central Act/State Act. The Petitioner herein shall also be liable to

make payment of the arrears i.e. tax, penalty, interest and late

fees.

(ii) The order of cancellation of registration dated 17.07.2021

challenged in WP(C) No.2695/2024 is set aside and quashed. The

petitioner herein is directed to file the returns for the period from

the date of cancellation of the registration i.e. 17.07.2021 till date

within 30 days from the date of the instant judgment. The period

as stipulated in Section 73(10) of the Central Act/State Act shall

be computed from the date of the instant judgment except for

the financial year 2024-25 which shall be as per Section 44 of the

Central Act/State Act. The Petitioner herein shall also be liable to

make payment of the arrears i.e. tax, penalty, interest and late

fees.

(iii) The order of cancellation of registration dated 23.03.2021

challenged in WP(C) No.3683/2024 is set aside and quashed. The

petitioners herein are directed to file the returns for the period

from the date of cancellation of the registration i.e. 23.03.2021

till date within 30 days from the date of the instant judgment.

The period as stipulated in Section 73(10) of the Central

Order downloaded on 04-08-2025 10:05:52 PMPage No.# 29/29

Act/State Act shall be computed from the date of the instant

judgment except for the financial year 2024-25 which shall be as

per Section 44 of the Central Act/State Act. The Petitioners herein

shall also be liable to make payment of the arrears i.e. tax,

penalty, interest and late fees.

(iv) The order of cancellation of registration dated 10.02.2021

challenged in WP(C) No.4500/2024 is set aside and quashed. The

petitioner herein is directed to file the returns for the period from

the date of cancellation of the registration i.e. 10.02.2021 till date

within 30 days from the date of the instant judgment. The period

as stipulated in Section 73(10) of the Central Act/State Act shall

be computed from the date of the instant judgment except for

the financial year 2024-25 which shall be as per Section 44 of the

Central Act/State Act. The Petitioner herein shall also be liable to

make payment of the arrears i.e. tax, penalty, interest and late

fees.

JUDGE

Comparing Assistant