Allowed

M/S Cvk Infrastructure Pvt. Ltd. v. The Additional Commissioner (Appeals-Ii)

Telangana HC17 Aug 2023WP/22114/2023

Case brief

AI extract

What is this about?

Writ petition filed by a taxpayer challenging the rejection of an appeal due to non-submission of challan copies at the time of filing. The court found the petitioner had paid taxes and due to subsequent production of proof, the rejection order was remanded for fresh consideration.

What did the court decide?

The impugned order dated 20.07.2023 is set aside and remanded to the respondent to reconsider the appeal on merits within four weeks.

M/S Cvk Infrastructure Pvt. Ltd. Vs The Additional… — Cheque Dishonour | Telangana HC (2023)

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[³³⁸⁶ ]

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HIGH COURT FOR THE STATE OF TELANGANA AT HYDERABAD (Special Original Jurisdiction)

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THURSDAY ,THE SEVENTEENTH DAY OF AUGUST TWO THOUSAND AND TWENTY THREE

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PRESENT

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THE HONOURABLE SRIJUSTICE P.SAM KOSHY AND

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THE HONOURABLE SRI JUSTICE LAXMI NARAYANA ALISHETTY

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WRIT PETITION NO: 22114 OF 2 023

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Between:

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M/s. CVK lnfrastructure Pvt Ltd, Represented bv its Authorised Sionatorv. ShriSriharshaKoshan S/o China Venkateswarlu Having Office at^plot No-j2, lDh Moulali, N/alkajgiri, Hyderabad Telangana - 50000

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AND

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..,PETITIONER

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1 The Additional Commissioner (Appeals-ll), GST and Central Tax, 7th Floor, 9ST^{Bhavan,LB Stadium Road, Basheerbagh,Hyderabad- 500004.}

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2 The Superintendent of Central Tax, Jubilee Hills -i, Punjagutta, Hyderabad Telangana

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J The Commissioner of Central Tax, [/edchal GST Commisisonerate, CF36 plus 25V. Redhills, Hyderabad, Telangana 500004

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4 Union of Union of lndia, Ministry of Finance, Department of Revenue, Rep by its Secretary (Revenue), Room No. 46, North Biock, New Delhi 110001

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...RESPONDENTS

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Petition under Article 226 ol lhe Constitution of lndia praying that in the circumstances stated in the affidavit filed therewith, the High Court may be pleased to issue a Writ, Order or direction particularly one in the nature of a WRIT OF MANDAMUS or any other appropriate writ (i) to declare the impugned appeal rejection order bearing Order in Appeal No. HYD-GST-MD-AP2-O41-23-24 dated 20.07.2023 passed by the Respondent No. 1 in Appeal No 5112023(MD) cST as erroneous, arbitrary, illegal, passed in violation of principles of natural justice. (ii) to direct Respondents to revoke cancellation of Petitioners GST registration bearing no. 36AACCC8654R1ZW in the interest of justice and equity

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lA NO: 1 OF 2023

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Petition uncler 5lr^,;t on 15-1 CPC praying that in the (lircur s, ances slated in the affidavit filed ir sup:o,'t of the petrtion, the High Court nay be tJeirsed to stay the cancellation ol Petil )r ers GST registration bearing No 364A l: .)Ct654R1ZW

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Counsel for the Petitio er: SRl. KARAN TALWAR

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Counsel for the Respor dent Nos. 1to3: SRl. DOMINIC FERNA/{DES (SENIOR S 3 Fcr CBIC)

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Counsel for the Respor dent No.4: SRl. GADI PRAVEEN h:UM,All, DY.SOLICITOR GEN OF INDIA

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The Court made the fol owing: ORDER

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THE HON'BLE SRI JUSTICE P.SAM KOSHY

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: AND

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THE HON'BLE SRI JUSTICE LAXMI NARAYANA ALISHETTY WRIT PETITION No. 22114 of 2023

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ORDER (per llon'blc Sri ..tu.srice P.SAM KOSHY)

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Heard Mr.Karan Talwar, leamed counsel for the petitioner, Mr.Dorninic Fenmandis, learned counsel appearing fbr respondent Nos. I to 3 and Mr.B.Mukharj ee, learned counsel representing on behalf of Mr.Gadi Praveen Kumar, leamed Deputy Solicitor General of India, for respondent No.4. Perused the rnaterial on record.

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The instant writ petition has been filed being aggrieved by the impugned order dated 20.07.2023 in Order-in-Appeal No.HYD-GSTMD-AP2-041-23-24 passed by respondent No.1 in Appeal No.51 of 2023 (MD) GST

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Leamed counsel for the petitioner at the outset would submit that since the appellate Tribunal has still not been constituted under Section I l2 of the Central Good and Ser-vices Act and the petitioner herein has no other option but to prefer the instant writ petition.

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The short point or the primary chailenge to the impugned Order in Appeal is that according to the appellant though he had sufficient rnaterial available with him showing proof of the paqnent of the tax nrade by him, however, it could not be enclosed along with the memo

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i:i

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of appeai^art',I lh:^'lribunal itas^{rejccted the apll -:al trr l'cini i''at- slr'-rtt} point of lhe r ti ioner tailing^{ro subtniL anr'} 1.rt'o^{rl of l.rvlrlnt;ts:Iii'lst} the contir.uril.'r ,l'the bu sin ess.

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Leamed^o, unscl fol the^{peiitionersubmitsthat inftr':r thr: petitioncr}

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kLas been in^c ,n -inuity of busiltess and iras^bee I^{pa y rtll aJl thc taxes} regularly^tcr hr respondent^{authorities, br'rt riue to oversightarid} inadvefiencr:. r.he proof of payrnent patt i.e.,^{challi tt r:orld notL-''e} .rr: the authorities^{concerned.NotteI i.':le:ls.lear.ned} prodlrcetl tr,:: counsel fol tl rr petitioner submits that the^{peii!.iolle'rIlasorodr'tcerla} copy o1'tht:^, ntire: challan alor-rg '"vith^{the rvrit pelj. i( n thcr he haci} sr-rbmitted du ing the interregnum^{period, so as to : rbsiantiatehis} contentions, i ,;^{'egardspayments that he llad r ade t() he de partrlent} during tre ir. ,x^'egnum period.^{'fhus, petitioner collns(rlplal'ed to set} aside/quash t ,e impugned order^{dated 20.07.202-1l:rcl th': matterbe} remitted bacl to the authorities^{concernedfol recon:liCe:'ingall the} contentions P .rt fc,rth by the^{petitioner in his appeal.J- earledcounsel} for the petir-ic rer further submits^{that though the petiticr.er had paid the} entire tax inq .rest and late fees. bu[^{the same catnolt c uploadedsince} the portal^itse .f is closed for^{the same'}

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I t

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6 Leamed counsel for the petitioner relied on the judgment of the Delhi High Court in Kritika Agarwal vs. Union of India and ors.r Wherein the Delhi High Courl held that "the measire of cancellaiion of GST must be exercised with circumspection and only in cases, where it is necessary" .

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It is note worlhy to take note of the recent decision of the Division Bench of this Court in W.P.No.36l74 of 2022 wherein the Division bench of this Courl vide order 20.09.20212 under similar facts and circumstances interfered with the order of the appellate authority and remanded the rnatter back for fresh consideration on its own merits.

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Admittedty, the petitioner in the instant writ petition produced copies of the challans in respect of the payments that he has made showing the continuity of the business as also showing the payment of taxes to the department. The only inaction of the petitioner is to the extent that in the appeal before the Commissioner he could not enclosed the copy ofchallan that he has paid to the department.

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Having heard the contentions putforth on behalf of the petitioner and also on perusing the recent decisions that have been rendered by tlre Division Bench of this Courl as also that of the Delhi High Court

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'^{w.e.1c1stzt1zozs} and cM Nos.36000/2023 & 36001/2023

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referred to irr I reJe,Cing paragrirph, we are o1'th: con r':.lere d opirLion that the petitio re' has been able to n)ake out a fa.irl'r qci-d ea.se to establish that t e ilnpugned orCer passed Lry tl'r: app:l ate authcrity warrants interi€ erlce to the extent of confinninq t.-re pa1 n. ents status of tire petitioner",,r :i ying u,ith the same tlrat he has cnclos,::l rvi:lL tlrr: u,rit petition.^'Iho ripugned older dated 20.07.2()2-l parserl bl the Additional^(--o nrnissioner (Appeals-tt)(HYLI) iS a:L ordingJl as icle'/q Lrashecl l Lr,- the rnatter is lelrritted blick tc. rcsp,lrclcrt i\Jo. i to reconsider the .p,)sal on its o\n lnerits after dt e ver ]-:ation of the copy of the cha arr that the petitiorrer shall ploduc: befbre thc appeiiate authority u,hjle prrrsuing his appeal.^'fhe respondent l{:.1 is ex;iected to take a deo s lrr on the appeal at the earlir:st, pre [( r'r]bl) within a perioC offour (t 1' u'eeks.

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With the a:ove observation and direction. the V/r t I'erition is

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allovred. Nio c,rc ,:r as to costs.

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As a seqr.iel nriscellaneous applications pending if rr-y in this rvrit

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petition, shall r;t rn I <:losed

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S D/.V.KAVITHA ASSIST,'\NI /''^REGISTRAR //TRUECOPY// :;r,brtdru oFFtcER

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To, llh F 3or' GST 1 The Additioral Cc^{r issioner(Appeas-ll) GSI a1d} 9tlIilJ'* Bil;;;;. tB sia:ii^{n qoao Basheerbasn Hvderaba! - 5010c4}

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2 Tffi'S;F;i.;,i.^{i, iii|-it|.rr f i, Luo"Lree ri lls -'1} '^{Punlar;utta l- v:ieraoad} Telanoana

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3 iF5'i%-*I-,ri..io.e c^{Central Tax, N4edchalGST Comm isisonerat': CF36 plus 25V'} n"inir-s. Hv:liao I^{T€'langara 50000r}

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4 Tha ea^ro;rv r-rr ol Union 6[^{tnOla,Vinistryof Financ(i, Depz rtrnentof RevenUe,} l#ff;;i,^{R,,;.;i,. ao, uol.tn BlockNetv Delhi'1 10001}

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o iiffi $is fs i^{,l[1fri"-iEH',tInafl':i3:ii!?!Hil11e.,o,n,'.;r cB,c) rQfuQr} One CC^{to sRl. ( \l)l PRAVEii!K-UMARDV S<jutcrioaGE r ')c INDIA [oPUC]}

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