ORDER: (PER THE HON’BLE THE CHIEF JUSTICE UJJAL BHUYAN)
Heard Ms. S.Aruna Sri, learned counsel representing Mr. S.Suri Babu, learned counsel for the petitioner and Ms. B.Sapna Reddy, learned counsel for the respondents.
2. This petition has been filed under Article 226 of the Constitution of India assailing the legality and validity of the order dated 29.12.2020 passed by the 1st respondent as well as the order-in-appeal dated 12.01.2023 passed by the 2nd respondent.
3. By the first order dated 29.12.2020, the Goods and Services Tax (GST) registration of the petitioner has been cancelled. Appeal filed by the petitioner against the aforesaid order of cancellation has been rejected by the 2nd respondent vide the order-in-appeal dated 12.01.2023.
4. Petitioner before us is a proprietorship concern engaged in the business of movie making. After enactment of the GST laws, petitioner got itself registered with the GST authorities bearing registration No.36ASYPT3562E1Z3. Show cause notice dated 16.12.2020 was issued by the 1st respondent to the petitioner to show cause as to why GST registration of the petitioner should not be cancelled. Order dated 29.12.2020 records that reply of the petitioner dated 25.12.2020 was not found satisfactory and accordingly, the GST registration was cancelled.
5. Learned counsel for the petitioner submits that petitioner did not receive the show cause notice dated 16.12.2020 and therefore did not submit reply dated 25.12.2020 as stated by the 1st respondent.
6. As a matter of fact, on going through the order dated 29.12.2020, we do not find any reason being mentioned by the 1st respondent for cancellation of GST registration of the petitioner.
7. Be that as it may, against such cancellation of registration, petitioner preferred appeal before the 2nd respondent. However, by the order-in-appeal dated 12.01.2023, 2nd respondent rejected the appeal by upholding the order passed by the 1st respondent.
8. On going through both the orders dated 29.12.2020 and 12.01.2023, we are of the view that there appears to be total non-application of mind on the part of the said respondents while passing the two impugned orders.
9. In any view of the matter, issue raised in this writ petition is no longer res integra.
10. In M/s. Chenna Krishnama Charyulu Karampudi v. Additional Commissioner Appeals (2022) 142 taxmann.com 70 (Telangana), a division bench of this Court held as follows:
“5. On a query by the Court as to why petitioner has not approached the Goods and Services Tax Tribunal (GST Tribunal) under section 112 of the Central Goods and Services Tax Act, 2017 (briefly, ‘CGST Act’ hereinafter), learned counsel for the petitioner submits that till date no GST Tribunal has been constituted.
6. We have perused the order dated 19-4-2022. This is an order passed by the first appellate authority under section 107(1) of the CGST Act. As per sub-section (1) of section 107 of the CGST Act, limitation for filing appeal is three months from the date of communication of the order appealed against. Under sub-section (4) of section 107 of the CGST Act, the appellate authority may allow the appeal to be presented within a further period of one month, provided sufficient cause is shown by the appellant.
7. Though the lower appellate authority may be right in holding that while it may allow filing of an appeal beyond the limitation of three months for a further period of one month, therefore, by extension of limitation beyond the extended period of one month delay beyond the extended period of one month cannot be condoned, we are of the view that such a stand taken by respondent No. 1 may adversely affect the petitioner. This is more so because respondent No. 2 had suo motu cancelled the GST registration of the petitioner on the ground of non-filing of returns and as GST Tribunal has not been constituted under section 109 of the CGST Act, petitioner would be left without any remedy.
8. We further find that the issue pertains to cancellation of GST registration of the petitioner. In the facts and circumstances of the case, it would be just and proper if the entire matter is remanded back to respondent No. 2 to reconsider the case of the petitioner and thereafter to pass appropriate order in accordance with law.
9. In the light of the above and without expressing any opinion on merit, we remand the matter back to the file of respondent No. 2 to consider the grievance expressed by the petitioner against cancellation of GST registration and thereafter pass an appropriate order in accordance with law. Needless to say, when the respondent No.2 hears the matter on remand, petitioner shall submit all the returns as per the statute.
10. Writ petition is accordingly disposed of.”
11. Following the same, we set aside both the orders dated 29.12.2020 and 12.01.2023 and remand the matter back to the file of the 1st respondent for passing a fresh order in accordance with law after giving due opportunity of hearing to the petitioner.
12. Writ Petition is accordingly allowed. However, there shall be no order as to costs.
13. Miscellaneous applications pending, if any, in this Writ Petition shall stand closed.