Madras High Court
M/S.Tvl.Mcog Engineering And ... vs The Assistant Commissioner ... on 3 March, 2022
W.P.No.4827 of 2022
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 03.03.2022
CORAM
THE HONOURABLE MR.JUSTICE R.SURESH KUMAR
W.P.No.4827 of 2022
and
W.M.P.Nos.4947, 4949 & 4950 of 2022
M/s.Tvl.MCOG Engineering and Fabrication Pvt Ltd.,
Represented by its Managing Director,
Mr.Y.Eliyas, aged about 35 years,
S/o.Mr.Yesudass,
No.61, Parthasarthi Street,
Chinnasekkadu, Manali,
Tiruvallur District,
Chennai – 600 068. ... Petitioner
Vs
1.The Assistant Commissioner (Circle)
Tiruvallur: Zone-XI, Chennai South,
Chennai.
2.The Deputy Commissioner (ST)
GST-Appeal, Chennai- I,
3rd Floor, C.T Annexe Building,
No.1, Greams Road,
Chennai – 06.
3.The Assistant Commissioner (ST)
Cholavaram Assessment Circle,
Integrated Commercial Taxes Building,
1/9
https://www.mhc.tn.gov.in/judis
W.P.No.4827 of 2022
Chennai(North) Division, Room No.109,
Elephant Gate Bridge Road,
Chennai – 03. ... Respondents
PRAYER: Petition filed under Article 226 of the Constitution of India,
praying for issuance of a Writ of Certiorari, to call for the records of the
1st respondent in impugned proceedings of the 1st respondent in Reference
Number: ZA330919064084B dated 05.09.2019 (19.09.2019) and the
consequential order of the 2nd respondent in Rc.No.491/2021/A1 dated
23.06.2021, quash the same.
For Petitioner : Mr.M.Hariharan
For Respondents : Mr.R.Siddharth
Government Advocate
ORDER
The prayer sought for herein is for a Writ of Certiorari, to call for
the records of the 1st respondent in impugned proceedings of the 1st
respondent in Reference Number: ZA330919064084B dated 05.09.2019
(19.09.2019) and the consequential order of the 2nd respondent in
Rc.No.491/2021/A1 dated 23.06.2021 and quash the same.
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W.P.No.4827 of 2022
2. The petitioner's registration certificate issued under the GST
REG-17 was cancelled on 05.09.2019.
3. Aggrieved over the said cancellation, the petitioner preferred an
appeal on 19.06.2021, which has been rejected through the impugned
order dated 23.06.2021.
4. Mr.M.Hariharan, learned counsel appearing for the petitioner
would submit that, under Section 107 of the said Act, appeal should have
been filed within three months and if there is any reason to condone the
delay, further period of 30 days, within which, delay can be condoned,
for which, application could be filed. Citing the said limitation period
contemplated under Section 107 of the Act, now the rejection has been
made.
5. However, learned counsel appearing for the petitioner would
submit that, this issue has been considered in a batch of writ petitions in
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W.P.No.4827 of 2022
the matter of Tvl.Suguna Cutpiece Center Vs. The Appellate Deputy
Commissioner (ST) (GST) in W.P.No.25048 of 2021 & etc., batch dated
31.01.2022, wherein a learned Judge of this Court has passed a very
exhaustive order considering various provisions of the Act, including
Section 47 of the said Act, which enables the authorities to levy late fee
for filing of late return also.
6. Ultimately, in the said order cited supra, the learned Judge has
passed the following orders:
“229. In the light of the above discussion, these Writ Petitions are
allowed subject to the following conditions:-
i. The petitioners are directed to file their
returns for the period prior to the cancellation of
registration, if such returns have not been already
filed, together with tax defaulted which has not been
paid prior to cancellation along with interest for such
belated payment of tax and fine and fee fixed for
belated filing of returns for the defaulted period under
the provisions of the Act, within a period of forty five
(45) days from the date of receipt of a copy of this
order, if it has not been already paid.
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W.P.No.4827 of 2022
ii. It is made clear that such payment of Tax,
Interest, fine / fee and etc. shall not be allowed to be
made or adjusted from and out of any Input Tax
Credit which may be lying unutilized or unclaimed in
the hands of these petitioners.
iii. If any Input Tax Credit has remained
utilized, it shall not be utilised until it is scrutinized
and approved by an appropriate or a competent
officer of the Department.
iv. Only such approved Input Tax Credit shall
be allowed for being utilized thereafter for
discharging future tax liability under the Act and
Rule.
v. The petitioners shall also pay GST and file
the returns for the period subsequent to the
cancellation of the registration by declaring the
correct value of supplies and payment of GST shall
also be in cash.
vi. If any Input Tax Credit was earned, it shall
be allowed to be utilised only after scrutinising and
approving by the respondents or any other competent
authority.
vii. The respondents may also impose such
restrictions / limitation on petitioners as may be
warranted to ensure that there is no undue passing of
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W.P.No.4827 of 2022
Input Tax Credit pending such exercise and to ensure
that there is no violation or an attempt to do bill
trading by taking advantage of this order.
viii. On payment of tax, penalty and uploading
of returns, the registration shall stand revived
forthwith.
ix. The respondents shall take suitable steps by
instructing GST Network, New Delhi to make suitable
changes in the architecture of the GST Web portal to
allow these petitioners to file their returns and to pay
the tax/penalty/fine.
x. The above exercise shall be carried out by
the respondents within a period of thirty (30) days
from the date of receipt of a copy of this order.
xi. No cost.
xii. Consequently, connected Miscellaneous
Petitions are closed.”
7. Relying upon this decision, learned counsel appearing for the
petitioner seeks indulgence of this Court against the impugned order.
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W.P.No.4827 of 2022
8. Heard Mr.R.Siddharth, learned Government Advocate appearing
for the respondents, who would fairly submit that, in view of the
judgment rendered by the writ court dated 31.01.2022 in the case of
Tvl.Suguna Cutpiece Center(cited supra), in the terms of the said order,
the present writ petition can be disposed of.
9. Accordingly, the following orders are passed in this writ
petition:
(i)That the impugned order is set aside and the matter is remitted
back to the 1st respondent, where, the 1st respondent shall consider the
said application along with condone delay petition by taking into account
the judgment rendered by this Court in the case of Tvl.Suguna Cutpiece
Center(cited supra), especially in Paragraph 229 referred to above and
accordingly, decide the appeal on merits.
(ii) The Appellate Authority shall pass orders on the appeal within
a period of 30 days and accordingly, communicate the same to the
registering authority/original authority for the purpose of needful,
consequential action for revocation of the cancellation.
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W.P.No.4827 of 2022
10. With these directions, this writ petition is ordered accordingly.
However, there shall be no order as to costs. Consequently, connected
miscellaneous petitions are closed.
03.03.2022
Index : Yes / No
Speaking Order : Yes / No
kak
To
1.The Assistant Commissioner (Circle)
Tiruvallur: Zone-XI, Chennai South,
Chennai.
2.The Deputy Commissioner (ST)
GST-Appeal, Chennai- I,
3rd Floor, C.T Annexe Building,
No.1, Greams Road,
Chennai – 06.
3.The Assistant Commissioner (ST)
Cholavaram Assessment Circle,
Integrated Commercial Taxes Building,
Chennai(North) Division, Room No.109,
Elephant Gate Bridge Road,
Chennai – 03.
https://www.mhc.tn.gov.in/judis
W.P.No.4827 of 2022
R. SURESH KUMAR, J.
kak
W.P.No.4827 of 2022
03.03.2022
https://www.mhc.tn.gov.in/judis
