M/S Surajit Karmakar and Anr. Vs the Union of India and 3 Ors.

It is the case of the petitioners that the petitioner No.1 - “M/S Surajit Karmakar” is a proprietorship firm and the petitioner No. 2 is the sole proprietor and is an assessee registered under the Central Goods and Services Tax (CGST) Act, 2017/Assam Goods and Services Tax (AGST) Act, 2017 bearing registration No. 18BAQPK2569F2ZA. Because of non-filing of GST returns for a continuous period of six months, the petitioners were served with a show cause notice bearing reference No. ZA1801200142648 dated 22.01.2020 asking to furnish

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reply to the aforesaid notice within a period of 30 (thirty) days from the date of service of notice and it was mentioned in the aforesaid show cause notice that if the petitioners 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 the available records and on merits. Thereafter, the impugned order dated 03.06.2020 was passed by the Superintendent, Karimganj-3, (now Sribhumi), whereby the petitioners’ GST registration has been cancelled without assigning any reason.

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It is contended that the petitioner No. 2 was not so much conversant with the online procedure. Therefore, he could not submit any reply to the said show cause notice. It is further contended that when the petitioners came across the said notice, the time for filing reply was already over and order had also been uploaded in the portal.

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The petitioners further contend that all the pending returns up to the month of June, 2020 have been updated as allowed by the GST portal and while updating his returns, the petitioners have also discharged all the GST dues along with the late fees and interest. Thereafter, the petitioners filed the necessary application seeking revocation of GST cancellation, which however, has been dismissed.

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Being aggrieved, the petitioners have approached this Court by filing the present writ petition.

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Ms. Hawelia, the learned counsel for the petitioners has submitted that the petitioners are ready and willing to comply with all the formalities required as per proviso to sub-rule (4) of Rule 22 of the CGST Rules, 2017.

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As per Section 29(2)(c) of the Act, an officer, duly empowered, may cancel

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the GST registration of a person from such date, including any retrospective date, as he deems fit, where any registered person, has not furnished returns for a continuous period of 6 (six) months. Rule 22 of the CGST Rules, 2017 has laid down the procedure for cancellation of the registration.

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Rule 22 of the CGST Rules, 2017 being the bone of contention, is extracted herein below:-

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Rule 22 : Cancellation of Registration

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(1) Where the proper officer has reasons to believe that the registration of a person is liable to be cancelled under Section 29, he shall issue a notice to such person in FORM GST REG-17, requiring him to show cause, within a period of seven working days from the date of the service of such notice, as to why his registration shall not be cancelled.

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(2) The reply to the show cause notice issued under sub-rule [1] shall be furnished in FORM REG-18 within the period specified in the said sub-rule.

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(3) Where a person who has submitted an application for cancellation of his registration is no longer liable to be registered or his registration is liable to be cancelled, the proper officer shall issue an order in FORM GST REG-19, within a period of thirty days from the date of application submitted under Rule 20 or, as the case may be, the date of the reply to the show cause issued under sub-rule

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(1), (or under sub-rule (2A) of Rule 21A) cancel the registration, with effect from a date to be determined by him and notify the taxable person, directing him to pay arrears of any tax, interest or penalty including the amount liable to be paid under sub-section (5) of Section 29.

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Where the reply furnished under sub-rule (2) (or in response to the notice issued under sub-rule (2A) of Rule 21A) is found to be satisfactory, the proper officer shall drop the proceedings and pass an order in FORM GST REG-20 : Provided that where the person instead of replying to the notice served under sub rule (1) for contravention of the provisions contained in Clause (b) or Clause (c) of sub-section (2) of section 29, furnishes all the pending returns and makes full payment of the tax dues along with applicable interest and late fee, the proper officer shall drop the proceedings and pass an order in FORM GST REG-20.

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(5) The provisions of sub-rule (3) shall, mutatis mutandis, apply to the legal heirs of a deceased proprietor, as if the application had been submitted by the proprietor himself.

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It is discernible from a reading of the proviso to sub-rule (4) of Rule 22 of the Rules of 2017 that if a person, who has been served with a show cause notice under Section 29(2)(c) of the Act, is ready and willing to furnish all the pending returns and to make full payment of the tax itself along with applicable interest and late fee, the officer, duly empowered, can drop the proceedings and pass an order in the prescribed Form i.e. Form GST REG-20.

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The learned counsel for the parties have also referred to an Order dated 11.10.2023 passed in a writ petition being WP(C) No.6366/2023 ( Sanjoy Nath vs. The Union of India and others ) wherein the petitioner therein was similarly situated like the present petitioners.

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Having regard to the fact that the GST registration of the petitioner no.1 has been cancelled under Section 29(2)(c) of the Act, for the reason that the petitioner no. 1 sdid not submit returns for a period of 6 (six) months and more

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and the provisions contained in the proviso to sub-rule (4) of Rule 22 of the CGST Rules, 2017 and cancellation of registration entails serious civil consequences, this Court is of the considered view that in the event the petitioners approach the officer, duly empowered, by furnishing all the pending returns and make full payment of the tax dues, along with applicable interest and late fee, the officer duly empowered, may consider to drop the proceedings and pass an appropriate order in the prescribed Form.

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In such view of the matter, this writ petition is disposed of by providing that the petitioners shall approach the concerned authority within a period of 2 (two) months from today seeking restoration of the GST registration. If the petitioners submit such an application and comply with all the requirements as provided in the proviso to Rule 22 (4) of the Rules, the concerned authority shall consider the application of the petitioners for restoration of the GST registration in accordance with law and shall take necessary steps for restoration of GST registration as expeditiously as possible.

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It is needless to say that the period as stipulated under Section 73 (10) of the Central GST Act/State GST Act shall be computed from the date of the instant order, except for the financial year 2024-25, which shall be as per Section 44 of the Central GST Act/State GST Act. The petitioner no.1 herein would also be liable to make payment of arrears i.e. tax, penalty, interest and late fees.

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The writ petition accordingly stands disposed of.

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No cost.

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JUDGE

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Comparing Assistant

M/S Surajit Karmakar and Anr. v. the Union of India and 3 Ors.

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