Gujarat High Court

Hardik Kaushikbhai Joshi vs Union Of India on 20 September, 2023

Bench: Bhargav D. Karia

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    C/SCA/13230/2023                             JUDGMENT DATED: 20/09/2023

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            IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

              R/SPECIAL CIVIL APPLICATION NO. 13230 of 2023


FOR APPROVAL AND SIGNATURE:


HONOURABLE MR. JUSTICE BIREN VAISHNAV

and
HONOURABLE MR. JUSTICE BHARGAV D. KARIA

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1    Whether Reporters of Local Papers may be allowed
     to see the judgment ?

2    To be referred to the Reporter or not ?

3    Whether their Lordships wish to see the fair copy
     of the judgment ?

4    Whether this case involves a substantial question
     of law as to the interpretation of the Constitution
     of India or any order made thereunder ?

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                       HARDIK KAUSHIKBHAI JOSHI
                                Versus
                            UNION OF INDIA
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Appearance:
MS VAIBHAVI K PARIKH(3238) for the Petitioner(s) No. 1
DELETED for the Respondent(s) No. 2
PRIYANK P LODHA, SENIOR STANDING COUNSEL for the Respondent(s)
No. 3
SERVED BY RPAD (N) for the Respondent(s) No. 1
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    CORAM:HONOURABLE MR. JUSTICE BIREN VAISHNAV
          and
          HONOURABLE MR. JUSTICE BHARGAV D. KARIA

                             Date : 20/09/2023

                            ORAL JUDGMENT

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(PER : HONOURABLE MR. JUSTICE BIREN VAISHNAV)

1 Rule returnable forthwith. Mr.Priyank Lodha,

learned Senior Standing Counsel waives service of notice

of rule on behalf of the respondent. With consent of the

learned advocates appearing for the respective parties,

the matter is taken up for final hearing today.

2 By way of this petition under Article 226 of the

Constitution of India, the petitioner has prayed to quash

and set aside the show cause notice dated 20.01.2023 and

the impugned order dated 22.06.2023.

3 Facts in brief are as under:

3.1 The petitioner is a proprietor of M/s. H.K. Tradelink,

engaged in the business of trading in waste and scrap,

registered under the provisions of the CGST Act having

its registration GSTIN No. 24IBPJ2381A2ZX with effect

from 12.03.2023. The petitioner has been regularly filing

the GST returns.

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3.2 It is the case of the petitioner that since the date of

registration of the proprietary concern, there was not a

single query from respondent No.2., but to the utter

shock of the petitioner, the petitioner received a Show

Cause Notice dated 20.01.2023 in Form GST REG -17

through GSTIN Portal. It is petitioner's case that no

document, either in the form of notice or any other

document, has been received or served upon the

petitioner at his registered place of business.

3.3 It is further the case of the petitioner that the

impugned notice dated 20.01.2023, had granted seven

working days' time to the petitioner to furnish reply from

the date of service of notice, and also directed the

petitioner to appear personally on 27.01.2023, which was

before the period of seven working days to furnish the

reply.

3.4 The petitioner, filed reply on 27.01.2023 in Form

GST REG-18 which was served upon the respondent on

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the same date, to which the respondent remained silent

for a period of almost four and a half months and

suddenly on 22.06.2023 passed a non-speaking order for

cancellation of Registration in Form GST REG -19,

wherein, it was stated that the effective date of

cancellation of petitioner's registration was 13.03.2021.

4 Ms.Vaibhavi Parikh, learned counsel appearing for

the petitioner, submitted that the Show Cause Notice as

well as the impugned order are vague, inasmuch as, no

reasons have been assigned for cancellation of

registration. She would submit that the issue is covered

by a decision in the case of Aggarwal Dyeing and

Printing Works vs. State of Gujarat., reported in

[2022] 137 taxmann.com 332 (Gujarat).

5 Mr.Priyank Lodha, learned Senior Standing Counsel

appearing for the respondent No.1, would submit that,

admittedly, as a result of the registration having been

found fraudulent and havnig been obtained by means of

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fraud, willful mis-statement and suppression of facts, was

rightly cancelled.

5.1 Mr.Lodha, learned Senior Standing Counsel, has

tendered an affidavit-in-reply on behalf of the

respondents.

6 Having considered the submissions made by the

learned counsels appearing for the respective parties, it

is not in dispute that the issue is covered by the decision

in the case of Aggarwal Dyeing and Printing Works

(supra), which has set out procedure for cancellation of

registration. Paragraphs 9.2 to 11 of the decision, reads

as under:

"9.2 The procedure for cancellation of registration can be summarized as under:

i. A person already registered under any of the existing laws (Central excise, Service tax, VAT etc.), but who now is not liable to be registered under the GST Act has to submit an application electronically by 31st December 2017, in FORM GST REG-29 at the common portal for the cancellation of registration granted to him.

The Superintendent of Central Tax Cancellation of Registration in GST 12 GST FLYERS shall,

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after conducting such enquiry as deemed fit, cancel the said registration.

ii. The cancellation of registration under the State Goods and Services Tax Act or the Union Territory Goods and Services Tax Act, as the case may be, shall be deemed to be a cancellation of registration under Central Goods and Services Tax Act.

iii. In the event, the Superintendent of Central Tax has reasons to believe that the registration of a person is liable to be cancelled, 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; will be issued.

iv. The reply to the show cause notice issued has to be furnished by the registered person in FORM REG- 18 within a period of seven working days. iv. In case the reply to the show cause notice is found to be satisfactory, the Superintendent of Central Tax will drop the proceedings and pass an order in FORM GST REG -20.

v. However, when the 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 Superintendent of Central Tax will issue an order in FORM GST REG-19, within a period of thirty days from the date of application or, as the case may be, the date of the reply to the show cause issued, 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.

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vi. The registered person whose registration is cancelled shall pay an amount, by way of debit in the electronic credit ledger or electronic cash ledger, equivalent to the credit of input tax in respect of inputs held in stock and inputs contained in semi-finished or finished goods held in stock or capital goods or plant and machinery on the day immediately preceding the date of such cancellation or the output tax payable on such goods, whichever is higher.

vii. In case of capital goods or plant and machinery, the taxable person shall pay an amount equal to the input tax credit taken on the said capital goods or plant and machinery, reduced by such percentage points as may be prescribed or the tax on the transaction value of such capital goods or plant and machinery under section 15, whichever is higher.

viii. The cancellation of registration shall not affect the liability of the person to pay tax and other dues for any period prior to the date of cancellation whether or not such tax and other dues are determined before or after the date of cancellation.

9.3 At the same time, the statute also provides for revocation of cancellation:

i. When the registration has been cancelled by the Proper Officer (Superintendent of Central Tax) on his own motion and not on the basis of an application ,then the registered person, whose registration has been cancelled, can submit an application for revocation of cancellation of registration, in FORM GST REG-

21, to the Proper Officer (Assistant or Deputy Commissioners of Central Tax), within a period

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of thirty days from the date of the service of the order of cancellation of registration at the common portal, either directly or through a Facilitation Centre notified by the Commissioner:

ii. However, if the registration has been cancelled for failure to furnish returns, application for revocation shall be filed, only after such returns are furnished and any amount due as tax, in terms of such returns, has been paid along with any amount payable towards interest, penalty and late fee in respect of the said returns.

iii. On examination of the application if the Proper Officer (Assistant or Deputy Commissioners of Central Tax) is satisfied, for reasons to be recorded in writing, that there are sufficient grounds for revocation of cancellation of registration, then he shall revoke the cancellation of registration by an order in FORM GST REG-22 within a period of thirty days from the date of the receipt of the application and communicate the same to the applicant.

iv. However, if on examination of the application for revocation, if the Proper Officer (Assistant or Deputy Commissioners of Central Tax) is not satisfied then he will issue a notice in FORM GST REG-23 requiring the applicant to show cause as to why the application submitted for revocation should not be rejected and the applicant has to furnish the reply within a period of seven working days from the date of the service of the notice in FORM GST REG24.

v. Upon receipt of the information or

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clarification in FORM GST REG-24, the Proper Officer (Assistant or Deputy Commissioners of Central Tax) shall dispose of the application within a period of thirty days from the date of the receipt of such information or clarification from the applicant. In case the information or clarification provided is satisfactory, the Proper Officer (Assistant or Deputy Commissioners of Central Tax) shall dispose the application as per para (iii) above. In case it is not satisfactory the applicant- Cancellation of Registration in GST 16 GST FLYERS will be mandatorily given an opportunity of being heard, after which the Proper Officer (Assistant or Deputy Commissioners of Central Tax) after recording the reasons in writing may by an order in FORM GST REG- 05, reject the application for revocation of cancellation of registration and communicate the same to the applicant.

vi. The revocation of cancellation of registration under the State Goods and Services Tax Act or the Union Territory Goods and Services Tax Act, as the case may be, shall be deemed to be a revocation of cancellation of registration under Central Goods and Services Tax Act.

10. Thus, upon appreciation of the scheme of Act, where specific forms have been prescribed at each stage right from registration, cancellation and revocation of cancellation of registration, the same are to be strictly adhered too. At the same time, it is equally important that the Proper Officer empowered under the said Act adheres to the principles of natural justice.

11. At the outset, we notice that it is settled legal position of law that reasons are heart and soul of the order and non communication of same itself

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amounts to denial of reasonable opportunity of hearing, resulting in miscarriage of justice. This Court is bound by the said judgments hereinafter referred to. The necessity of giving reason by a body or authority in support of its decision came for consideration before the Supreme Court in several cases. Initially, the Supreme Court recognized a sort of demarcation between administrative orders and quasi-judicial orders but with the passage of time the distinction between the two got blurred and thinned out and virtually reached a vanishing point in the judgment of the Supreme Court in A.K. Kraipak v. Union of India, (1970) 1 SCR 45. The Hon'ble Supreme Court vide judgments in the cases of Ravi Yashwant Bhoir v. District Collector Raigad, (2012) 4 SCC 407, Sant Lal Gupta v. Modern Cooperative Grouop Housing Society Limited, (2010) 13 SCC 336; Kranti Associates Private Limited v. Masood Ahmed Khan, (2010) 9 SCC 496; Abdul Ghaffar v. State of Bihar, (2008) 3 SCC 258, has expanded the horizon of natural justice and reasons have been treated part of the natural justice. It has gone to the extent in holding that reasons are heart and soul of the order. The absence of reasons renders an order indefensible/unsustainable particularly when it is subject to appeal/revision. It is to be noted that in the case of Kranti Associates v. Masood Ahmed Khan, (2010) 9 SCC 496, the Hon'ble Supreme Court after considering various judgments formulated certain principles which are set out below:

"a. In India the judicial trend has always been to record reasons, even in administrative decisions, if such decisions affect anyone prejudicially.

b. A quasi-judicial authority must record reasons in support of its conclusions.

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c. Insistence on recording of reasons is meant to serve the wider principle of justice that justice must not only be done it must also appear to be done as well.

d. Recording of reasons also operates as a valid restraint on any possible arbitrary exercise of judicial and quasi-judicial oreven administrative power.

e. Reasons reassure that discretion has been exercised by the decision maker on relevant grounds and by disregarding extraneous considerations.

f. Reasons have virtually become as indispensable a component of a decision making process as observing principles of natural justice by judicial, quasi-judicial and even by administrative bodies.

g. Reasons facilitate the process of judicial review by superior Courts.

h. The ongoing judicial trend in all countries committed to rule of law and constitutional governance is in favour of reasoned decisions based on relevant facts. This is virtually the life blood of judicial decision making justifying the principle that reason is the soul of justice.

i. Judicial or even quasi-judicial opinions these days can be as different as the judges and authorities who deliver them. All these decisions serve one common purpose which is to demonstrate by reason that the relevant factors have been objectively considered. This is important for sustaining the litigants' faith in the justice delivery system.

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j. Insistence on reason is a requirement for both judicial accountability and transparency.

k. If a Judge or a quasi-judicial authority is not candid enough about his/her decision making process then it is impossible to know whether the person deciding is faithful to the doctrine of precedent or to principles of incrementalism.

l. Reasons in support of decisions must be cogent, clear and succinct. A pretence of reasons or 'rubber-stamp reasons' is not to be equated with a valid decision making process.

m. It cannot be doubted that transparency is the sine qua non of restraint on abuse of judicial powers. Transparency in decision making not only makes the judges and decision makers less prone to errors but also makes them subject to broader scrutiny (See David Shapiro in Defence of Judicial Candor (1987) 100 Harvard Law Review 731-737);.

n. Since the requirement to record reasons emanates from the broad doctrine of fairness in decision making, the said requirement is now virtually a component of human rights and was considered part of Strasbourg Jurisprudence. See (1994) 19 EHRR 553 at 562 para 29 and Anya v. University of Oxford, 2001 EWCA Civ 405, wherein the Court referred to Article 6 of European Convention of Human Rights which requires, "adequate and intelligent reasons must be given for judicial decision."

o. In all common law jurisdictions judgments play a vital role in setting up precedents for the future. Therefore, for development of law, requirement of giving reasons for the decision is of the essence and is virtually a part of "Due

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Process".

Thus, the position of law that emerges from the decisions mentioned above, is that assignment of reasons is imperative in nature and the speaking order doctrine mandates assigning the reason which is the heart and soul of the decision and said reasons must be the result of independent re- appreciation of evidence adduced and documents produced in the case."

7 The Court had held that by issuing a cryptic show

cause notice, the authorities had violated the principles of

natural justice. From the impugned order as well as the

show cause notice, the reasons for cancellation are not

decipherable therefrom.

8 On the aforesaid grounds, the show cause notice and

the impugned order are quashed and set aside. The

petition is allowed solely on the ground of violation of

principles of natural justice. The show cause notice as

well as the order cancelling the registration are quashed

and set aside with a liberty reserved to the respondent to

issue a fresh notice with particulars of reasons