THE HON’BLE DR.JUSTICE ANITA SUMANTH WP.Nos.18537, 18881, 18883, 21269, 21725, 21869, 21931, 22747, 22767, Restoration of Registration ordered with conditions, even if no application for revocation of cancellation / appeal against cancellation filed within the time frame.

IN THE HIGH COURT OF JUDICATURE AT MADRAS

Dated: 21.09.2022

CORAM:

THE HON’BLE DR.JUSTICE ANITA SUMANTH

WP.Nos.18537, 18881, 18883, 21269, 21725, 21869, 21931, 22747, 22767,

23024, 23761, 23860, 24267, 24396, 24399, 24491, 24495, 24667, 24668,

24716, 24720, 24801 & 25091 of 2022 and

WMP.Nos.17878, 18230, 18232, 18234, 18235, 20274, 20275, 20735, 20890,

20960, 21784, 21811, 21812, 22043, 22725, 22858, 23256, 23257, 23395,

23396, 23452, 23457, 23623, 23654, 23655, 23657 & 23658 of 2022

WP.Nos.18537 of 2022

M/s.Trans India Carco Carriers,

Represented by its Proprietor,

Mr.S.Praveen Kumar, aged about 42 years,

4th Floor, Room No.406, No.36,

Old No.239, A.M.Tower, Angappa Naicken Street,

 
Mannady, Chennai-600 001.

Vs.

The Assistant Commissioner (Circle),

Harbour, Harbour Assessment Circle,

 … Petitioner
Chennai. …Respondent

Prayer: Writ Petition filed under Article 226 of the Constitution of India praying to Writ of Certiorarified Mandamus, to call for the records of the respondent in impugned proceedings of the Reference

Number:ZA330322104460D dated 24.03.2022 and the consequential order in Reference Number:ZA330422048689C dated 13.04.2022, quash the same and direct the respondent to restore the GST registration certificate of the petitioner in GSTIN: 33ASTPP2402Q1Z8.

 

WP.Nos. For Petitioners For Respondents
WP.No.18537 of 2022 Mr.M.Hariharan Mrs.K.Vasanthamala Government Advocate
WP.Nos.18881          &

18883 of 2022

Mr.R.Senniappan Mr.C.Harsha Raj

Additional Government Pleader

WP.No.21269 of 2022 Mr.D.Vijayakumar Mr.V.Prasanth Kiran Government Advocate
WP.No.21725 of 2022 Mr.S.A.Shanmugam Mr.C.Harsha Raj

Additional Government Pleader

WP.No.21869 of 2022 Mr.K.M.Malarmannan Mr.Rajnish Pathiyil

Senior Standing Counsel

WP.No.21931 of 2022 Ms.Gayathri .S Ms.R.Hemalatha

Senior Standing Counsel

WP.No.22747 of 2022 Dr.G.Babu Mr.K.Umesh Rao

Senior Standing Counsel

WP.No.22767 of 2022 Mr.C.A.Ashok Kumar Mr.H.Siddharth

Junior Standing Counsel and

Mr.Rajendran Raghavan

Senior Standing Counsel

WP.No.23024 of 2022 Mr.Viswanathan for Mr.S.Rajasekar Mr.V.Prasanth Kiran Government Advocate
WP.No.23761 of 2022 Mr.B.Sivaraman Mr.V.Prasanth Kiran Government Advocate
WP.No.23860 of 2022 Mr.B.Raveendran Mr.A.P.Srinivas

Senior Standing Counsel

WP.No.24267 of 2022 Mr.P.V.Sudakar Ms.Amirtha Dinakaran Government Advocate
WP.No.24396 of 2022 Mr.D.R.Arun Kumar Ms.Amirtha Dinakaran Government Advocate
WP.No.24399 of 2022 Mr.Hari Radhakrishnan Mr.Rajnish Pathiyil

Senior Standing Counsel

WP.No.24491          &

24495 of 2022

Mr.S.A.Shanmugam Mr.TNC.Kaushik

Additional Government Pleader

WP.No.24667 of 2022 Mr.D.R.Arum Kumar Mr.V.Prasanth Kiran Government Advocate
WP.No.24668 of 2022 Mr.S.K.Purushothaman Mr.V.Prasanth Kiran Government Advocate
WP.No.24716          &

24720 of 2022

Mr.R.Senniappan Mr.V.Prasanth Kiran Government Advocate
WP.No.24801 of 2022 Mr.D.R.Arun Kumar Mr.V.Prasanth Kiran Government Advocate
WP.No.25091 of 2022 Mr.A.P.Ravi Mrs.Hema Muralikrishnan Senior Standing Counsel

O M M O N  O R D E R

I have had an occasion to consider the identical issue that arises in these writ petitions, in a batch of writ petitions in W.P.Nos.10663 of 2022 etc. batch and I have passed the following order on 17.08.2022:-

‘All writ petitioners have challenged orders passed on various dates cancelling their registrations under the provisions of the Tamil Nadu Goods and Services Tax Act, 2017 (in short ‘Act’).

  1. The petitioners have missed the bus in regard to several opportunities that were extended to them post-cancellation of the registrations by way of Amnesty Schemes wherein dealers were granted extension of time to take necessary steps to restore the cancelled registrations.
  2. The Act contains two in built modes to enable revocation of cancellation or restoration thereof. The first is the remedy under Section 30 which benefit has to be availed within thirty days from date of cancellation of order. None of these petitioners in this batch have filed application in terms of Section 30.
  3. The second remedy relates to filing of an appeal before the Appellate Authority and has to be availed within a period of three months from the date of communication of the cancellation order to the dealer. Barring some petitioners, that is, petitioners in WP.Nos.18698, 17850, 14931, 14369 and 18306 of 2022, none of the petitioners before me have availed this remedy.
  4. The Petitioner in WP.No.14931 of 2022 is stated to have availed appellate remedy, though belatedly with a delay of one year and eight days. The appeal was accompanied by returns for a period of six months with the admitted tax. In the case of petitioner in WP.No.17850 of 2022 the delay is stated to be of a period of two years, three months and three days. The appeal was accompanied by returns for a period of six months with the admitted tax.
  5. In the case of petitioner in WP.No.18698 of 2022, the delay is stated to be for a period of 165 days. The appeal was accompanied by returns for a period of six months with the admitted tax. In all the above cases, the appellate authority rejected the appeals as against which the present writ petitions have been filed. In WP.No.14369 of 2022, the order of cancellation had come to be passed prematurely, when the default in filing return was itself only for one month, contrary to the statutory provision. Be that as it may, return for the month of September 2020 is stated to have been filed along with admitted tax for both months.
  6. All other petitioners have approached this Court direct, by way of writ petition, seeking the relief of restoration. A learned Single Judge of this Court in a batch of writ petitions in WP.Nos.25048 of 2021 and batch has, by way of an order dated 31.01.2022, considered the cases of identically placed petitioners as before me. In the cases of those petitioners as well, orders of revocation had been passed and some of the petitioners had approached the assessing authority in terms of Section 30 seeking revocation, some had appealed the orders of cancellation under

Section 107 and others had merely approached this Court under Article 226 of the Constitution of India.

  1. The learned Judge has considered interim events including the position that Amnesty Schemes had not been availed by those petitioners. In fine, the learned Judge accepts the case of the petitioners, imposing certain conditions in para 229 of the order. A specific query was put to the State Counsel as to whether order dated 31.01.2022 has attained finality. He brings to my notice a communication that has been addressed by the Additional Chief Secretary/Commissioner of Commissioner of Commercial Tax to the GST Council on 31.03.2022 seeking the view of the Council and its guidance/directions in regard to the order of this Court dated 31.01.2022.
  2. There has been no response to the above communication and the State, like Samuel Beckett’s Godot, has merely been waiting, much past the time for filing of writ appeal before this Court. In my view, this tantamounts to their having accepted the order of this Court dated 31.01.2022 as a conscious decision has been taken by the State to let the limitation slip.
  3. The State also confirms that the directions as set out in order dated 31.01.2022 have been implemented in the case of all those petitioners. In light of the aforesaid discussion, the following directions at paragraph 129 of order dated

31.01.2022, extracted below, shall be taken to be passed in the present matter as well, effective from date of receipt of this order.

  1. The petitioners are permitted to file their returns for the period prior to the cancellation of registration, if such returns have not been already filed, together with tax defaulted which has not been paid prior to cancellation along with interest for such belated payment of tax and fine and fee fixed for belated filing of returns for the defaulted period under the provisions of the Act, within a period of forty five (45) days from the date of receipt of a copy of this order, if it has not been already paid.
  2. It is made clear that such payment of Tax, Interest, fine/fee and etc. shall not be allowed to be made or adjusted from and out of any Input Tax Credit which may be lying unutilized or unclaimed in the hands of these petitioners. iii. On payment of tax, penalty and uploading of returns,

the registration shall stand revived forthwith.

  1. The respondents shall take suitable steps by instructing GST Network, New Delhi to make suitable charges in the architecture of the GST Web Portal to allow these petitioners to file their returns and to pay the tax/penalty/fine.
  2. The above exercise shall be carried out by the respondents within a period of forty five (45) days from the date of receipt of a copy of this order.
  3. These writ petitions are allowed in the above terms. No costs. Connected miscellaneous petitions are closed.’

2.Since all learned counsels for the petitioners and the respondents concur on the position that the above order will be applicable on all fours in the present writ petitions, the same order is taken to be passed in these matters as well.

3.The directions at paragraph 10 of the aforesaid order are reiterated and shall stand triggered from today.

4.These writ petitions are allowed. No costs. Connected miscellaneous petitions are closed.

21.09.2022

Index:Yes Speaking Order vs

Note:Registry is directed to upload this order on 22.09.2022.

To

The Assistant Commissioner (Circle), Harbour, Harbour Assessment Circle, Chennai.

Dr.ANITA SUMANTH,J.

vs

WP.Nos.18537, 18881, 18883, 21269, 21725, 21869, 21931, 22747, 22767,

23024, 23761, 23860, 24267, 24396, 24399, 24491, 24495, 24667, 24668,

24716, 24720, 24801 & 25091 of 2022 and

WMP.Nos.17878, 18230, 18232, 18234, 18235, 20274, 20275, 20735, 20890,

20960, 21784, 21811, 21812, 22043, 22725, 22858, 23256, 23257, 23395, 23396, 23452, 23457, 23623, 23654, 23655, 23657 & 23658 of 2022

21.09.2022

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