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2025 DIGILAW 365 (GUJ)

Bhagwati Construction v. State of Gujarat

2025-04-03

BHARGAV D.KARIA, D.N.RAY

body2025
ORDER : BHARGAV D. KARIA, J. 1. Heard learned advocate Mr. Chetan K.Pandya for the petitioner and learned Assistant Government Pleader Ms. Shrunjal Shah for the respondents. 2. Issue notice forthwith. Learned Assistant Government Pleader Ms. Shrunjal Shah waives service of notice on behalf of the respondents. 3. By this petition under Article 227 of the Constitution of India, the petitioner has challenged the show cause notice dated 2.11.2022 for cancellation of registration as well as the order of cancellation of registration dated 21.11.2022 and order dated 30.11.2023 passed by the Deputy Commissioner of State Tax, Appeals rejecting the appeal of the petitioner on the ground of limitation. 4. Brief facts of the case are that the petitioner is engaged in the supply of scaffolding and dismantling services and all other ancillary services and the petitioner was also registered with the GST Department. 5. Assistant Commissioner, Ghatak-100, Jamnagar had issued a show cause notice in Form GST REG-17 dated 14.05.2018 for cancellation of registration on the ground that “Any Taxpayer other than composition taxpayer has not filed returns for a continuous period of 6 months.” 6. It is the case of the petitioner that thereafter vague and non speaking order of cancellation of Registration dated 14.08.2018 was passed without hearing the petitioner. 7. After coming to know about order of cancellation of Registration dated 14.08.2018, the petitioner had preferred an application dated 12.06.2019 for revocation of order of cancellation of registration. 8. The Commercial Tax Officer, Ghatak-100, Jamnagar had issued a show cause notice in Form GST REG-23 dated 25.06.2019 for rejection of application for revocation of cancellation of registration. 9. Thereafter Commercial Tax Officer, Ghatak-100 passed an order for revocation of cancellation of registration in Form GST REG-22 whereby the GST registration of the petitioner was restored. 10. It is the case of the petitioner that on 05.12.2019, proprietor of the petitioner had passed away and legal heir of the deceased proprietor is not an educated person and was unaware of the norms of business conducted by deceased husband/proprietor of M/s. Bhagwati Construction and necessary compliances related to GST were done by the deceased proprietor with the help of tax practitioner and thus legal heir of deceased Subi Devi had no knowledge related to the compliances done under GST. 11. 11. Respondents thereafter issued notices and orders in Forms ASMT 10, GST DRC 01A, GST DRC 01 and GST DRC 07. It is the case of the petitioner that legal heir of deceased proprietor Subi Devi being an uneducated house-wife residing in Bihar was not aware about any of the notices and therefore, orders were passed ex-parte after the said demise of the proprietor of M/s. Bhagwati Construction. 12. The State Tax Officer thereafter had made a spot visit on 01.10.2022 at the registered business premises of M/s. Bhagwati Construction at Vinayak City, Plot No.34/4, Naghedi, Jamnagar where the department found the owner of the premises who had rented the place to the petitioner’s deceased husband for business purpose who informed the department about the death of proprietor of M/s. Bhagwati Construction. 13. Respondent no.3 State Tax Officer thereafter issued the impugned notice in Form GST REG-17/31 dated 02.11.2022 for cancellation of registration on the ground that “In case, Registration has been obtained by means of fraud, wilful misstatement or suppression of facts”. 14. It is the case of the petitioner that the petitioner did not receive the show cause notice in Form GST REG-17/31 dated 2.11.2022 and she could not access the GST portal as she was unaware about anything related to GST and show cause notice dated 2.11.2022 was not brought to the attention of the petitioner. The petitioner therefore, could not reply to the show cause notice dated 2.11.2022 and the department without hearing the petitioner passed the order dated 21.11.2022 cancelling the registration of M/s. Bhagwati Construction by an ex-parte order. 15. It is the case of the petitioner that the petitioner came to know about the show cause notice dated 2.11.2022 and order for cancellation of registration dated 21.11.2022 as well as other notices and orders only after receiving communication from one of the recipient of services of namely M. Pallonji and Company Pvt. Ltd with regard to summons dated 3.07.2023 issued to the Director calling upon the information regarding their activities with M/s. Bhagwati Constructions. 16. The petitioner thereafter preferred an appeal under section 107 of the Central Goods and Services Tax Act, 2017 on 11.09.2023 along with application for condonation of delay in filing the appeal. 17. 16. The petitioner thereafter preferred an appeal under section 107 of the Central Goods and Services Tax Act, 2017 on 11.09.2023 along with application for condonation of delay in filing the appeal. 17. It is the case of the petitioner that respondent no.2-Deputy Commissioner of State Tax Appeals, Rajkot without considering the submissions made in the appeal and in application of condonation of delay had rejected the appeal vide order dated 30.11.2023 on the ground that the appellate authority does not have power to condone the delay. 18. Being aggrieved by the action of the respondent authorities, the petitioner had preferred the present petition. 19. Learned advocate Mr. Pandya for the petitioner submitted that proprietor of M/s. Bhagwati Construction Shri Amaresh Kumar Upadhyay expired on 05.12.2019 and this petition is filed by his wife Subi Devi as legal heir. 20. It was further submitted that show cause notice dated 2.11.2022 is a cryptic show cause notice wherein it is stated that registration has been obtained by means of fraud, willful statement and suppression of facts. 21. It was submitted that even order dated2.11.2022 for cancellation of registration is on different ground regarding not changing the place of business after demise of the husband of the petitioner after the spot verification carried out on 1.10.2022 by officers of the respondent. 22. It was further submitted that at present brother-in-law of the petitioner is carrying out the business of the late husband of the petitioner and necessary directions may be issued for filing application for revocation of the registration in the name of late husband of the petitioner so as to place the correct information with the respondent in order to complete the contracts which were awarded to the proprietorship firm of late husband of the petitioner by brother-in-law of the petitioner. 23. On the other hand, learned Assistant Government Pleader Mr. Shrunjal Shah for the respondents submitted that the respondents have served notices upon the registered email-ID with the department as well as detailed show cause notice was also sent on 4.11.2022 through registered AD Post which was received by the wife of the landlord where the late husband of the petitioner was carrying on business in the rented premises. 24. Shrunjal Shah for the respondents submitted that the respondents have served notices upon the registered email-ID with the department as well as detailed show cause notice was also sent on 4.11.2022 through registered AD Post which was received by the wife of the landlord where the late husband of the petitioner was carrying on business in the rented premises. 24. It was further submitted that impugned order is passed as no reply was filed on behalf of the proprietorship firm which is registered under the provisions of the GST Act and no interference is called for in the impugned order. 25. Considering the submissions made by the learned advocates for both the sides and in view of facts emerging from the record, it appears that after the sad demise of husband of the petitioner - Subi Devi, no care is taken to comply with the provisions of GST Act by the brother-in-law of the petitioner and no returns were filed and accordingly, no response was also given to the show cause notice issued by the respondent department. 26. Therefore, we are not going into the merits regarding as to whether the details of the show cause notice was served upon the petitioner or not. However, it would be relevant to consider the statement of facts stated in the appeal memo filed by the petitioner wherein it is stated that after the sad demise of late husband of the petitioner, business is being handled by the brother-in-law of the petitioner Subi Devi. It was also pointed out in the statement of facts that late husband of the petitioner was carrying out contract with M/s. M. Pallonji and Co. Pvt. Ltd. and the petitioner came to know about the proceedings with GST department only when a notice was received by the said company requiring them to pay the GST claim in respect of the bills issued by proprietorship firm M/s. Bhagwati Construction stating that GSTN of the said firm has been cancelled ab initio. It was therefore, submitted that on information being received by the said company, the petitioner preferred an appeal beyond the period of limitation and as per the provisions of section 107(4) of the Act, the appeal is dismissed by the appellate authority. 27. It was therefore, submitted that on information being received by the said company, the petitioner preferred an appeal beyond the period of limitation and as per the provisions of section 107(4) of the Act, the appeal is dismissed by the appellate authority. 27. Be that as it may, in view of above facts without prejudice to the rights of the petitioner, the petitioner is permitted to file an application for revocation of cancellation of registration of M/s. Bhagwati Construction, now proprietorship firm of Subi Devi being the legal heir of late Shri Amaresh Kumar Upadhayay so as to regularise the registration with the GST department in accordance with law. Learned advocate Mr. Pandya for the petitioner submitted that such application shall be made within a period of one week from today. The respondents are directed to consider such application within a period of two weeks from the date of receipt thereof after giving an opportunity of hearing to the petitioner or her legal representative and decide the same in accordance with law within a period of four weeks therefrom. 28. With the aforesaid directions, the petition is disposed of. No order as to cost. Direct service is permitted.