ORDER

Heard learned counsel for the petitioner and Sri Jagdish Mishra, learned Standing Counsel for the respondents.

This writ petition has been filed with the following prayers:

“(i) issue a writ or direction or pass an order in the nature of certiorari quashing the impugned order dated 19.8.2019 passed by the Assistant Commissioner, Commercial Tax, Division-2, Lallitpur i.e. respondent no. 3 (Annexure- no. 2 to the writ petition)as well as impugned order dated 24.3.2021 passed in Appeal No. AD090221005109/21 by the Additional Commissioner, Grade-2 (Appeals), Commercial Tax, Jhansi i.e. respondent no. 2 (Annexure no. 8 to the writ petition).

(ii) issue a writ or direction or pass an order in the nature of mandamus directing the respondents not to take any coercive action against the petitioner pursuant to issuance of impugned order.”

A perusal of the averments in the writ petition reveal that the petitioner was duly registered under the U.P. Goods and Services Tax Act, 2017 (hereinafter referred to as the ‘Act’) having GST TIN No. 09BPXPS6696M1Z9. The certificate of GST was issued on 2.8.2018. A show cause notice was issued to the petitioner on 31.8.2019 informing him that its registration is liable to be cancelled for the reasons that “1.

In case of Voluntary registration, Non-commencement of business taxpayer within within 6 months from the date of registration”. In that notice, it was mentioned the petitioner is to file a reply within 7 working days from the date of service of notice. It was further mentioned that in case petitioner fails to furnish a reply or fails to appear for personal hearing on the appointed date and time, the case will be decided ex-parte on the basis of available records and on merits. It is stated that no date and time was mentioned in the said notice dated 31.8.2019. Thereafter, by means of an order dated 18.9.2019, the registration of the petitioner was cancelled, the effective date of cancellation of registration being 31/8/2019. The order of cancellation did not require the petitioner to pay any amount. On coming to know of the order of cancellation, an application dated 21.12.2020 was moved by the petitioner for revocation of cancellation of registration. Thereafter, another show cause notice dated 2.1.2021 was issued to the petitioner, which read as follows :-

“Reference Number : ZA090121009647Q Date: 02/01/2021

To,

SUJAAN SINGH

AZADPUR, LALITPUR, LALITPUR, Lalitpur, Uttar Pradesh,

284403

GSTIN : 09BPXPS6696M1Z9

Application Reference No.(ARN): AA0912201019140 Dated: 21/12/2020

Show Cause Notice for rejection of application for revocation of cancellation of registration.

This has reference to your application dated 21/12/2020 regarding revocation of cancellation of registration. Your application has been examined and the same is liable to be rejected for the following reasons:

1. Reason for revocation of cancellation – Others (Please specify) – your revocation application not with in time according to act.

You are hereby directed to furnish a reply to this notice within null working days from the date of service of this notice.

If you fail to furnish a reply within the stipulated date or fail to appear for personal hearing on the appointed date and time, the case will be decided ex parte on the basis of available records and on merits.

Pawan Kumar

Assistant Commissioner

Lalitpur, Sector-2”

(emphasis supplied)

It has been stated in the writ petition that without fixing any date or time for hearing and without waiting for any reply from the petitioner, by means of an order dated 30/01/2021, the application for revocation of cancellation of registration was rejected on the ground that the petitioner had not replied to the notice dated 2.1.2021 within the time specified therein.

Admittedly, the petitioner did not furnish any reply to the show cause notice dated 2.1.2021. However, what is required to be seen is that whether the mandate of section 30 of the Act was complied with by the authority concerned. Section 30 of the Act is quoted below for ready reference:-

Section “30. Revocation of cancellation of registration. – (1) Subject to such conditions as may be prescribed, any registered person, whose registration is cancelled by the proper officer on his own motion, may apply to such officer for revocation of cancellation of the registration in the prescribed manner within thirty days from the date of service of the cancellation order.

(2) The proper officer may, in such manner and within such period as may be prescribed, by order, either revoke cancellation of the registration or reject the application:

Provided that the application for revocation of cancellation of registration shall not be rejected unless the applicant has been given an opportunity of being heard.

(3) The revocation of cancellation of registration under the Central Goods and Services Tax Act, 2017 (12 of 2017) shall be deemed to be a revocation of cancellation of registration under this Act.”

Thus, sub-section (1) of Section 30 of the Act enables a registered person, whose registration has been cancelled suo moto by a proper officer,

(i) to apply so such officer for revocation of cancellation of registration in the prescribed manner.

(ii) within 30 days from the date of service of the cancellation order, and,

(iii) subject to the prescribed conditions.

Sub-section (2) of Section 30 enables the proper officer to either revoke the cancellation of registration or reject the application by order in such manner and within such period as may be prescribed. The manner and period are prescribed in sub-rules (2), (3) and (4) of Rule 23. Before passing an order for rejection of the application for revocation of cancellation of registration, the proper officer is required to issue a show cause notice in Form GST REG-23, to which the applicant is required to furnish a reply in Form GST REG-24 within 7 working days from the date of service of the notice. However, the proviso to sub-section (2) of Section 30 prohibits the rejection of the application for revocation of cancellation of registration, unless the applicant has been given opportunity of being heard. Therefore, regardless of the fact of not furnishing a reply by the applicant in Form GST REG-24 to the show cause notice in the Form GST REG-23, the application cannot be rejected without giving the applicant an opportunity of being heard. Suffice it to say that in Form GST REG-21, the reasons for revocation of cancellation of registration are required to be filled in by the applicant.

The Form GST REG-23 referred to in the Rules is as follows:-

“To

Name of the Applicant/Taxpayer

Address of the Applicant/ Taxpayer GSTIN

Application Reference No. (ARN)

Show Cause notice for rejection of application for revocation of cancellation of registration.

This has reference to your application dated DD/MM/YYYY regarding revocation of cancellation of registration. Your application has been examined and the same is liable to be rejected for the following reasons.

1.

2.

3.

You are hereby directed to furnish a reply to this notice within seven working days from the date of service of this notice.

You are hereby directed to appear before the undersigned on DD/MM/YYY at HH/MM.

If you fail to furnish a reply within the stipulated day or you fail to appear for personal hearing on the appointed date and time, the case will be decided ex parte on the basis of available records and on merits.

Signature

Name of the Proper Officer

Designation

Jurisdiction.”

Thus, the show cause notice is required to mention that the petitioner has to furnish a reply to that notice within 7 working days and that his appearance is required before the notice issuing authority on the specified date and time. The notice dated 2.1.2021 that has been enclosed as Annexure-5 to the writ petition reveals that neither the time to file a reply to the notice has been mentioned and neither is the appointed date and time mentioned in the notice. The reason ascribed in the show cause notice dated 2/1/2021 is only that the revocation application is not within the prescribed time. A perusal of the counter affidavit reveals that contents of para-21 of the writ petition have not been replied at all. The content of para-21 of the writ petition reads as follows:

“21. That pursuant to the filing of application for revocation dated 21.12.2020, the respondent no. 3 again issued a show cause notice dated 02.01.2021 directing the petitioner to furnish reply within null working day, which also did not reflect any date and time for personal hearing.”

In the order dated 24/3/2021, the appellate authority observed that the application for revocation has been filed after 30 days, which is a clear violation of Section 30 and Rule 23; that the proper authority is not authorised to extend the time so provided; and that the appellate authority has got right only to examine the legal and factual aspects of the aforesaid order. The authority noted that in the order under dispute, neither is there any factual error nor have the powers granted by the Statute to the proper authority been disregarded. Accordingly, the appeal was dismissed.

Therefore, there is no consideration of the proviso to sub-section (2) of Section 30 of the Act in the appellate order.

It is, therefore, evident that in the show cause notice for rejection of the application for revocation of cancellation of registration of the petitioner, neither is the period of days specified to furnish its reply to the notice nor is the appointed date and time for personal hearing mentioned in that notice and this fact has not been rebutted in the counter affidavit. Moreover, no opportunity of hearing was provided to the petitioner/applicant.

In view of the aforesaid, I find that the mandatory requirement of the proviso to sub-section (2) of Section 30 of the Act has not been complied with. As such the show cause notice dated 2.1.2021 is no show cause notice in the eyes of law. Accordingly, the subsequent order dated 30.01.2021, rejecting the application for revocation of cancellation, of the authority is questionable. Given the limited prayer made in the writ petition, the order dated 24.3.2021 passed by the appellate authority is set aside and the case is remitted to him to take a fresh decision on the appeal of the petitioner in accordance with law.

Writ petition is allowed to the extent mentioned above.