阿拉哈巴德高等法院撤销了GST注册注销决定，并批评了税务部门的冷漠态度。

In the matter of M/S ANSARI CONSTRUCTION VERSUS ADDITIONAL COMMISSIONER CENTRAL GOODS AND SERVICES TAX (APPEALS) AND 2 OTHERS, (Writ Tax No. - 626 of 2020), the respondent have issued the show cause notice and further in this an ex parte order was passed for cancellation of registration.

In this judgement Hon’ble Court expressed its surprise that why this instructions could not be obtained at earlier levels and the callous attitude of the Department has resulted in the assessee being harassed by approaching one forum after the other and wasting his considerable financial resources as well as time.

Henceforth the petitioner filed an appeal for revocation of cancellation of GST registration by justifying that he had filed all the returns till date. The appeal made by the appellant to appellate and adjudicating authority, has not been of any help to the petitioner,

The Hon’ble Allahabad High Court held that in case of cancellation of GST registration due to non-filing of GST returns, applicant is liable to file all pending returns along with payment of applicable taxes for the purpose of revocation. It is the responsibility of the department to check such returns and allow revocation of cancellation of GST registration. 

1. 案情简介

1. The petitioner has a proprietorship firm and was registered for providing constructions services.
2. The petitioner failed to file GST returns for a continuous period of 6 months. Therefore, the respondent served show cause notice proposing to cancel GST registration of petitioner on 21st November, 2019.
3. Persurance of such notice, the respondent passed an ex-parte order cancelling GST registration of respondent on 30th November, 2019, i.e., within 9 days of issuance of notice.
4. The petitioner submitted all pending GST returns and also made payment of pending GST alongwith interest and late fee and filed application for revocation of cancellation of GST registration on 19th December, 2019, i.e., within 30 days from date of issuance of notice.
5. In response to the application for revocation of GST registration cancellation, the respondent in turn issued a show cause notice requesting for personal appearance of the petitioner without specifying any reason for issuance of SCN.
6. The petitioner appeared and apprised that all the returns have already been filed.
7. However, ignoring such submission, the respondent rejected the application for revocation on the ground that details of amount and challans were not submitted.

2. Petitioner appeal before Appellate Authority

1. Aggrieved by the order of Adjudicating authority, the petitioner filed an appeal before the Appellate Authority appealing that application for revocation of GST registration cancellation was wrongly rejected as all challans are available on GST portal itself. Petitioner filed copy of all returns and challans.
2. However, the Appellate Authority dismissed the appeal and affirmed the order passed by the Adjudicating authority. For issuing orders, the Appellate Authority relied on email received from divisional offices which convey that the taxpayer did not upload any document online.
3. The AA further mentioned that the petitioner had only stated that all the liabilities have been paid by them even and he has not disclosed any evidence of the same.

Aggrieved by the order Appellate Authority, The petitioner filed an appeal before Hon’ble High Court of Allahabad.

3. Contention of the petitioner before before hon’ble Allahabad High Court

1. Aggrieved by order of adjudicating as well as appellate Authority, the petitioner filed a writ petition before Hon’ble High Court.
2. Respondent submitted that all records with respect to filing of GST return and payment of challans are available on GST portal itself and same was submitted before Appellate Authority also.
3. However, the Appellate Authority rejected the appeal only on the basis of mails received from jurisdictional officers. Further, Jurisdictional officers were not satisfied with the fact that returns have been filed and challans have been paid by the petitioner.

4. Submissions made by the respondent before Hon’ble High Court of Allahabad

The court has granted time to respondents to obtain instructions. On the basis of instructions received and their analysis respondents states the following:-

1. Taxpayer has duly filed the GSTR-3B up to November 2019.
2. No dues are pending towards tax, late fee and interest.
3. A copy of the instructions so received are taken on record.

It is clear from the facts that case highlighted the callous manner from which the assessee has been harassed by the respondents.

5. Legal extracts

1. Section 29(2)(c) of Central Goods and Service Tax Act, 2017 is reiterated below:

“29. Cancellation of registration

...

(2)The proper officer may cancel the registration of a person from such date, including any retrospective date, as he may deem fit, where,--

..

(c)any registered person, other than a person specified in clause (b), has not furnished returns for a continuous period of six months; or”

2. 《2017年北方邦商品及服务税（UP GST）规则》第23条第(1)款重述如下：

“23. 撤销注册注销-

1) 注册人若被主管官员依职权注销注册，可在自注销注册令在通用门户网站送达之日起三十日内，直接或通过税务专员指定的便利中心，向该主管官员提交撤销注销注册的申请，格式为FORM GST REG-21：

……”

6. 高等法院的解读。

高等法院指出了以下几点：

1. 根据第29条第(2)款(c)项，如果纳税人连续六个月未提交申报表，主管官员可以注销其GST注册。然而，根据第30条，该纳税人可以申请撤销GST注册注销。
2. 根据第23条第(1)款，纳税人有义务提交申报表，并确保缴纳应缴税款及任何利息、罚款和滞纳金。法律并未对纳税人或申请撤销者施加额外负担。
3. 在本案中，申请人称其已提交所有逾期GST申报表并结清所有欠款。因此，税务部门有责任核实申请人所陈述内容的准确性。
4. 高等法院指出，被申请人未能从自身记录中核实事实，反而针对撤销GST注册注销的申请发出了说明理由通知书（SCN），这显然是严重的失职。
5. 该说明理由通知书的发出方式完全不可接受，因为其中并未记录纳税人的任何过失。令人费解的是，该通知书究竟意欲何为。
6. 显而易见，这些涉及巨额税收的准司法职能，竟由缺乏法律专业素养的人员行使。
7. 因此，被申请人驳回申请人申请的决定完全是武断的，体现了决策者缺乏法律专业素养，因为官员们根本没有努力去核实申请人所陈述事实的准确性。
8. 另一方面，上诉机构在裁决上诉时也犯了同样的明显武断错误，完全背离了法定上诉的目的。
9. 此外，被申请人发布的指令清楚地表明，所有逾期GST申报表均已提交。
10. 法院对为何未能早些获取这些指令表示惊讶，并指出税务部门的冷漠态度导致纳税人被迫在不同机构间奔波，浪费了大量财力和时间。

7. 高等法院裁决

鉴于税务部门已认可所有逾期申报表均已按时提交且无欠款，因此，裁决机构和上诉法庭作出的决定应予撤销。