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2024 DIGILAW 1746 (GUJ)

Mansingh Somabhai Chaudhari v. State Of Gujarat

2024-08-21

BHARGAV D.KARIA, NIRAL R.MEHTA

body2024
ORDER : BHARGAV D. KARIA, J. 1. Heard learned advocate Mr.D.K. Trivedi for the petitioner and learned advocate Mr.P.Y. Divyeshvar for respondent Nos.3 and 4. 2. By this petition under Articles 226 and 227 of the Constitution of India, the petitioner has prayed for the following reliefs. “C. Your Lordships may be pleased to issue writ of mandamus or any other appropriate writ directing the respondent authorities to immediately revoke cancellation of GSTIN 24ADHPC7739X1ZU and immediately make the said GSTIN 24ADHPC7739C1ZU active so that the petitioner can avail credit of Input Tax paid on inputs and can pay Goods & Service Tax in regard to the output supplies, in accordance with law; D. Your Lordships may be pleased to quash and set aside Order for cancellation of GSTIN 24ADHPC7739C1ZU (if any); E. Your Lordships may be pleased to grant an ex-parte, ad interim order in favour of the petitioner herein in terms of prayer clause ‘C’ & ‘D’ hereinabove; F. Your Lordships may be pleased to grant such other and further relief/(s) that may be deemed fit and proper in the interest of justice in favor of the Petitioner; G. Your Lordships may be pleased to issue appropriate writ quashing and setting aside Order-in-Original No.03/GST/REG/GNR/YMR/2023-24 dtd. 25/04/2024 issued on 10/05/2024 (Annexure ‘T’); H. Your Lordships may be pleased to issue appropriate writ quashing and setting aside Order-in-Original No.13/GST/REG/GNR/YMR/2023-24 dtd. 02/07/2024 issued on 02/07/2024 (Annexure ‘U’).” 3. The petitioner was registered with Commercial Tax Department vide Registration Certificate under Value Added Tax Act having Registration No.TIN-24060302136 prior to 01st July, 2017. 3.1 With effect from 01st July, 2017 Goods & Service Tax was introduced and various duties and taxes including Value Added Tax were subsumed in the GST. 3.2 As per the provisions of the Goods & Service Tax Act, 2017, assessees who have been registered under 11 statutes were required to migrate by filing migration form in two parts i.e. Part A and Part B. 3.3 The petitioner submitted application for migration and completed Part A of the migration form but Part B was left out. 3.4 The Respondent – GST Department issued a provisional registration No.24ADHPC7739C1ZU on 26th June, 2017. However, as the part B was left out, provisional registration certificate was cancelled. 3.4 The Respondent – GST Department issued a provisional registration No.24ADHPC7739C1ZU on 26th June, 2017. However, as the part B was left out, provisional registration certificate was cancelled. 3.5 The petitioner received two e-mails dated 23rd August, 2018 informing about temporary reference number being generated for application form of the petitioner and such application was submitted successfully. Thereafter, the petitioner was informed that application for new registration GST REG-01 was approved and GST No.24ADHPC7739C2ZT was allotted to the petitioner. 3.6 The petitioner, therefore, could not file return of income for the years 2017-18 and 2018-19. The petitioner had sent an e-mail dated 18th January, 2019 to the Deputy Commissioner and Nodal Officer (GST), Gandhinagar, requesting to do the needful so as to enable the petitioner to complete the Part B and complete the process of migration. 3.7 The petitioner received an e-mail dated 22nd January, 2019 from the GSTN informing about complete procedure for migration from old regime to GST regime. 3.8 As per the guidelines provided by the said e-mail, it was informed to the petitioner that if the tax payer receives a new GST number with different entity code in 13th and 14th character because of the previous record, the same should not be activated. 3.9 As per the procedure prescribed in the e-mail dated 22nd January, 2019, another GST No.24ADHPC7739C3ZS was generated to enable the petitioner for migration from old regime to GST regime. 3.10 It appears that by e-mail dated 25th January, 2019 the petitioner was informed that application for cancellation of registration and GST REG-16 dated 24th January, 2019 was given registration number as Application Reference Number (ARN) AA2401190528471. 3.11 The petitioner thereafter received e- mail dated 29th January, 2019 in reference to the application for cancellation of registration GST REG-16 filed by the petitioner having ARN AA2401190528471 dated 24th January, 2019 informing that petitioner has been served with an order having Reference No.ZA240119095062P approving the application for cancellation of registration with effect from 24th August, 2018. As per the order dated 29th January, 2019, GST No.24ADHPC7739C2ZT was cancelled with reference to ARN AA2401190528471. 3.12 The petitioner thereafter received registration certificate in Form GST REG – 06 bearing registration No.24ADHPC7739C1ZU on 08th February, 2019. As per the order dated 29th January, 2019, GST No.24ADHPC7739C2ZT was cancelled with reference to ARN AA2401190528471. 3.12 The petitioner thereafter received registration certificate in Form GST REG – 06 bearing registration No.24ADHPC7739C1ZU on 08th February, 2019. 3.13 The petitioner thereafter requested the Department to activate old GST number 24ADHPC7739C1ZU on 22nd February, 2019 so as to enable the petitioner to file return and pay interest and late fee. 3.14 The respondent issued show-cause notice for cancellation of registration number for 24ADHPC7739C3ZS in Form GST REG – 17. 3.15 Another notice seeking clarification in relation to suo motu cancellation was issued on 27th May, 2020. 3.16 The petitioner thereafter received show- cause notice dated 06th June, 2020 for assessment under Section 63 of the Gujarat Goods & Service Tax Act with regard to GST No.24ADHPC7739C1ZU for tax period September, 2018 to March, 2019 and summary was issued, according to which the tax dues were Rs.01,00,08,134/-. Another similar notice was also issued for the period April, 2019 to March, 2020 on the same date for tax dues of Rs.01,47,67,934/-. 3.17 Thereafter, GST No.24ADHPC7739C3ZS was cancelled with effect from 08th June, 2020 and order for suo motu cancellation of registration was served upon the petitioner. 3.18 The petitioner, in response to the said show-cause notice dated 06th June, 2020, by letter dated 03rd July, 2020 explained the facts to the Assistant Commissioner, Ghatak-24, Range-7, Division-3, Gandhinagar, to point out that the petitioner had filed return in Form GSTR-1 and GSTR-3B upto August, 2018 and as the registration was cancelled by the Department, the said returns could not be filed from September, 2018 onwards inspite of the efforts made by the petitioner. 3.19 Thereafter the petitioner was served with notice in Form GST DRC-22 dated 17th September, 2020 for provisional attachment of the bank account under Section 83 of the GST Act. 3.20 It is the case of the petitioner that petitioner uses GST No.24ADHPC7739C1ZU for the purpose of its business and the suppliers of inputs mentions the same number on the respective invoices and input tax credit could only be availed by the petitioner if the said number is in operation. The petitioner, therefore, required to pay GST only in the GST No.24ADHPC7739C1ZU. 4. The petitioner thereafter preferred this petition for revoking the cancellation of GST No.24ADHPC7739C1ZU. This Court by order dated 17th November, 2021 called upon the respondents to file reply. The petitioner, therefore, required to pay GST only in the GST No.24ADHPC7739C1ZU. 4. The petitioner thereafter preferred this petition for revoking the cancellation of GST No.24ADHPC7739C1ZU. This Court by order dated 17th November, 2021 called upon the respondents to file reply. The respondent filed affidavit-in- reply on 08th August, 2022 explaining in detail about the cancellation of registration of GST No.24ADHPC7739C1ZU on 08th February, 2019. Thereafter the matter was heard from time-to-time and on 08th February, 2024 the petitioner was permitted to file application for revocation of cancellation of the registration number and the respondents were directed to consider such application on merits and pass appropriate order, to be placed on record. 4.1 Pursuant to the order dated 08th February, 2024, the respondent authorities passed two orders dated 10th May, 2024 and 02nd July, 2024. Both the orders were giving different reasons and therefore, following order was passed on 25th July, 2024. “1. Heard learned advocate Mr.D.K.Trivedi for the petitioner, learned Assistant Government Pleader Mr.Chintan Dave for the respondent No.1 and learned advocate Mr.P.Y.Divyeshvar for the respondent Nos.3 and 4. 2. Learned advocate Mr.D.K.Trivedi for the petitioner in view of our Oral Order passed in the first session, has placed on record the draft amendment at 02:30 PM today by which the authors of the orders dated 10.05.2024 and 02.07.2024 are to be joined as respondent Nos.5 and 6. The same is allowed in terms of the draft. To be carried out forthwith. 3. On perusal of the orders dated 10.05.2024 and 02.07.2024 passed by the newly added respondent No.5 and 6 respectively, it is apparent that both the orders are contradictory. In order dated 10.05.2024 it is stated that the registration of the petitioner was cancelled due to technical glitch whereas, in the order dated 02.07.2024, it is stated that the petitioner applied for cancellation and as such, the same was approved and the order GST No.GSTIN24AHDPC7739C1ZU was cancelled. 4. We direct both respondent Nos.5 and 6 to explain the contents of the orders dated 10.05.2024 and 02.07.2024. We also direct them to explain as to how they came to know about any Oral Order, though no Oral Order was passed by this Court on 26.06.2024. We make it clear that we have not passed any Oral Order on 26.06.2024 directing the respondents to pass any further order. 5. We also direct them to explain as to how they came to know about any Oral Order, though no Oral Order was passed by this Court on 26.06.2024. We make it clear that we have not passed any Oral Order on 26.06.2024 directing the respondents to pass any further order. 5. Issue Notice to the respondent Nos.5 and 6, returnable on 1st August, 2024. Direct service through Email is permitted.” 4.2 The petitioner, accordingly, amended the petition by placing both the orders on record. The respondent filed affidavit-in-reply to the amended petition on 24th July, 2024 justifying the order dated 02nd July, 2024. Thereafter the matter was taken up for hearing on 02nd August, 2024 and following order was passed. “[1] By this petition under Articles 226 and 227 of the Constitution of India, the petitioner has prayed for revocation of cancellation of GSTIN 24ADHPC7739C1ZU and further prayed for directing the respondents to make the said GSTIN active so as to enable the petitioner to avail the Input Tax Credit on inputs and to pay the Goods and Service Tax with regard to the output supply in accordance with law. [2] The petitioner has also amended the petition to quash and aside the order dated 10th May 2024 passed by the respondent No.5 and order dated 2nd July 2024 passed by the respondent No.6 during the pendency of this petition. [3] The brief facts of the case are that the petitioner, who is a proprietor of M/s. Geeta Chemist, was registered with the Commercial Tax Department and was holding Registration Certificate under the Value Added Tax Act, 2003 having Registration No.TIN 2406032136. [3.1] The petitioner thereafter applied for Migration Form under the Goods and Services Tax Act which has come into effect from 1st July 2017. The respondents issued the provisional GSTIN 24ADHPC7739C1ZU on 26th July 2017. [3.2] The petitioner continued to file returns under the provisions of the GST Act upto 31st August 2018 under the aforesaid provisional registration number. [3.3] It is the case of the petitioner that as Part “B” was left out, the provisional registration certificate which was generated got cancelled. [4] When the query was put to learned advocate Mr. D. K. Trivedi for the petitioner that when the registration certificate got cancelled, learned advocate Mr. [3.3] It is the case of the petitioner that as Part “B” was left out, the provisional registration certificate which was generated got cancelled. [4] When the query was put to learned advocate Mr. D. K. Trivedi for the petitioner that when the registration certificate got cancelled, learned advocate Mr. Trivedi prays for time to ascertain the said fact, as stated in para 4.4 of the petition, is correct or not. Stand over to 8th August 2024.” 4.3 Pursuant to the aforesaid order, the petitioner has placed on record details of filing of Form GSTR-1 and GSTR-3B for the F.Y. 2017-18 and 2018-19 upto August, 2019, which shows that the petitioner has filed both the Returns in GST No.24ADHPC7739C1ZU on ending of month of August, 2019. 5. Learned advocate Mr.Trivedi for the petitioner submitted that the respondent authority cancelled the GST No.24ADHPC7739C1ZU instead of GST No.24ADHPC7739C3ZS and thereby has caused inconvenience to the petitioner to claim the ITC and to file returns and taxes online. It was submitted that the respondents, in the affidavit-in-reply dated 08th August, 2022, has stated that GST Registration No.24ADHPC7739C1ZU was cancelled due to technical glitch as the cancellation order dated 08th February, 2019 was issued by the Range Superintendent, Range-3, Gandhinagar Division and the ARN No.AA2401190528471 dated 24th January, 2019 appears to be related to cancellation of Registration No.24ADHPC7739C2ZT. 5.1 It was, therefore, submitted that the Respondent – Department, by considering the application of the petitioner to cancel GST No.24ADHPC7739C2ZT, cancelled the GST registration number which was issued provisionally being GST No.24ADHPC7739C1ZU. It was, therefore, prayed that the respondent may be directed to activate the GST No.24ADHPC7739C1ZU so as to enable the petitioner to upload the returns, taxes, interest etc. on the goods and services supplied by the petitioner and to avail ITC on the purchases made by the petitioner. 6. On the other hand, learned advocate Mr.Divyeshvar for the respondent authorities submitted that the respondent authorities have filed affidavit-in-reply dated 24th July, 2024 contending that the petitioner voluntarily made an application for cancellation of GST number and accordingly, order was passed to cancel the GST No.24ADHPC7739C1ZU. 6. On the other hand, learned advocate Mr.Divyeshvar for the respondent authorities submitted that the respondent authorities have filed affidavit-in-reply dated 24th July, 2024 contending that the petitioner voluntarily made an application for cancellation of GST number and accordingly, order was passed to cancel the GST No.24ADHPC7739C1ZU. It was, therefore, submitted that once the petitioner has made an application to cancel the GST No.24ADHPC7739C1ZU and the order was passed on 08th February, 2019, there was no fault on part of the respondent authorities in cancelling the said GST number and the same is not required to be activated. 7. Having heard learned advocates for the respective parties and considering the documents placed on record, the short question which arises for consideration is whether the respondent authorities were justified in cancelling GST No.24ADHPC7739C1ZU or not? 8. It emerges from the facts on record that the petitioner filed Migration Form to get GST number with effect from 01st July, 2017. However, the number allotted to the petitioner being GST No.24ADHPC7739C1ZU was cancelled on account of non-filing of Part B by the petitioner. 9. It also appears that the respondent authorities granted GST No.24ADHPC7739C2ZT in the year 2018 to the petitioner which was cancelled on an application made by the petitioner by order dated 29th January, 2019. 10. The petitioner thereafter took action to renew the GST No.24ADHPC7739C1ZU only in the year 2019 and applied for new number which was allotted to the petitioner as GST No.24ADHPC7739C3ZS as per the procedure prescribed in the e-mail dated 22nd January, 2019 from GSTN. 11. From the above facts, it is clear that the petitioner had applied for cancellation of GST No.24ADHPC7739C3ZT and not GST No.24ADHPC7739C1ZU. Therefore, the first affidavit dated 08th August, 2022 filed on behalf of the Respondent – Department and Order-in- Original dated 10th May, 2024 appears to be correct one as the Department, due to some technical error/glitch, cancelled the GST No.24ADHPC7739C1ZU instead of GST No.24ADHPC7739C2ZT. 12. The second affidavit-in-reply filed on 24th July, 2024 and Order-in-Original dated 02nd July, 2024 appears to be based upon the fact that the petitioner made an application for cancellation of GST number with acknowledgment number. However, there is no reference to the said acknowledgment number AA2401190528471 to point out that said application of the petitioner for cancellation of GST No.24ADHPC7739C1ZU. 13. However, there is no reference to the said acknowledgment number AA2401190528471 to point out that said application of the petitioner for cancellation of GST No.24ADHPC7739C1ZU. 13. From the details of GST Returns in Form GSTR-1 and GSTR-3B filed by the petitioner in the month of August, 2019 after revival of GST No.24ADHPC7739C1ZU and the details of filing of the Returns by the petitioner under GST No.24ADHPC7739C1ZU, it appears that the said GST number is confirmed by the respondent on 08th February, 2019 and could not have been cancelled. 14. In such circumstances, it is apparent from the record that the petitioner has never filed an application for cancellation of GST No.24ADHPC7739C1ZU. 15. In view of the foregoing reasons, the petition succeeds and the impugned action of the respondent authorities cancelling GST No.24ADHPC7739C1ZU is hereby quashed and set aside. The cancellation order passed by the respondent authorities pertains to cancellation of GST No.24ADHPC7739C3ZT. In view of the above, the impugned Order-in-Originals dated 10th May, 2024 and 02nd July,2 024 are also hereby quashed and set aside and the respondent authorities are directed to activate GST No.24ADHPC7739C1ZU so as to enable the petitioner to upload the Returns which are pending since 2018-19 along with requisite taxe, interest, penalty etc. 16. Such exercise shall be completed within a period of eight weeks from the date of receipt of copy of this order. 17. The petition is accordingly disposed of. Notice is discharged.