Madras High Court

M/S.Central Industrial Security ... vs The Assistant Commissioner ... on 28 March, 2023

                                                                               WP(MD)No.6583/2023



                          BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT

                                               DATED : 28.03.2023

                                                     CORAM

                                    THE HONOURABLE MS.JUSTICE P.T.ASHA

                                              WP(MD)No.6583/2023

                     M/s.Central Industrial Security Services,
                     Represented by its partner P.Ganesan,
                     GSTN 33AAFFC9370E2ZK,
                     135, V.S.Complex, Bethaniapuram, By Pass Road,
                     Madurai - 625 020.                                         ... Petitioner
                                                      Vs.

                     The Assistant Commissioner (Circle),
                     West Veli Street Assessment Circle,
                     Commercial Taxes Buildings,
                     Madurai - 20.                                           ... Respondent

                     Prayer: Writ Petition filed under Article 226 of the Constitution of India
                     to issue a writ of certiorarified mandamus calling for the records on the
                     file of the respondent in Reference No.ZA33092201098J dated
                     03.09.2022 and to quash the same as illegal, arbitrary and direct the
                     respondents to revoke the cancellation of petitioner's GSTN registration
                     No.33AAFFC9370E2ZK within the time stipulated by this Court.




                     Page 1 of 14
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                                                                                            WP(MD)No.6583/2023



                                  For Petitioner            :      Mr.S.Karunakar


                                  For Respondent            :      Mr.J.John Rajadurai,
                                                                   Government Advocate



                                                                ORDER

The above writ petition is filed to quash the order of the

respondent dated 03.09.2022, in and by which, the petitioner's GST

Registration was cancelled and for a direction to the respondent to

revoke the cancellation of the petitioner's GST Registration.

2. The case of the petitioner Company is that they have been

engaged in the service of providing security services to the private

concerns and apartments and carrying on business under the name and

style 'Central Industrial Security Services'. The concern is a partnership

firm. They have enrolled under the Tamil Nadu Goods and Services Tax

Act, 2017 (herein after referred as 'the Act') in GSTIN:

33AAFFC9370E2ZK. The petitioner Company have been regular in

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uploading the monthly returns in GSTR-3B within the due dates and

have also paid the GST on time. They have also filed GSTR-1 returns

within the due time. The returns were filed through GST portal online.

The partners of the petitioner concern not being proficient in accounts

and GST matters, were solely relying upon their part time Accountant to

upload these details/forms. While so, the petitioner Company was

informed in the month of February 2023 that the GST Registration has

been cancelled and therefore, they were not able to take the Input Tax

Credit on the amount disbursed to them. The petitioner Company on

verification came to know that the part time accountant had not filed

GST and monthly returns for over 6 months and the GST Registration

was cancelled with effect from 03.09.2022. Therefore, the petitioner

Company left with no other alternative has approached this Court, since

the respondent is not willing to restore the GST Registration.

3. The learned counsel for the petitioner Company would rely upon

the decision of the Principal Bench of this Court in Tvl.Suguna Cutpiece

vs. Appellate Deputy Commissioner (ST) (GST) and others reported in

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2022 (2) TMI 933, wherein, it was held that no useful purpose would be

served by keeping the petitioners out of the Goods and Services Tax

regime, as such assessee would still continue to do business and supply

goods and services.

4. The learned counsel for the respondent would also admit that the

above referred Judgment is being followed in similar matters.

5. The relevant paragraphs of the said Judgment are extracted

hereunder:

"216. Since, no useful will be served by not allowing persons like the petitioners to revive their registration and integrate them back into the main stream, I am of the view that the impugned orders are liable to be quashed and with few safeguards.

217. There are adequate safeguards under the GST enactments which can also be pressed against these petitioners even if their

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registration are revived so that, there is no abuse by these petitioners and there is enough deterrence against default in either paying tax or in complying with the procedures of filing returns.

218. Further, the Government requires tax to meet its expenditure. By not bringing these petitioners within the GST fold, unintended privilege may be conferred on these petitioners unfairly to not to pay GST should they end supplying goods and/or services without registration. For example, a person renting out an immoveable property will continue to supply such service irrespective of registration or not.

219. Therefore, if such a person is not allowed to revive the registration, the GST will not be paid, unless of course, the recipient is liable to pay tax on reverse charge basis. Otherwise, also there will be no payment of value added tax. The ultimate goal under the GST regime will stand defeated. Therefore,

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these petitioners deserve a right to come back into the GST fold and carry on their trade and business in a legitimate manner.

220. The provisions of the GST Enactments and the Rules made there under read with various clarifications issued by the Central Government pursuant to the decision of the GST Council and the Notification issued thereunder the respective enactments also make it clear, intention is to only facilitate and not to debar and de~recognised assesses from coming back into the GST fold.

221. While exercising jurisdiction, under Article 226 of the Constitution, the powers of the Court to do justice i.e., what is good for the society, can neither be restricted nor curtailed. This power under Article 226 can be exercised to effectuate the rule of law.

222. Therefore, power of this Court under Article 226 of the Constitution of India is being exercised cautiously in favour of the

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petitioners as this power is conceived to serve the ends of law and not to transgress them.

223. In Mafatlal Industries Ltd. Vs. Union of India, (1997) 5 SCC 536, in Paragraph No.77, the Hon'ble Supreme Court observed that "So far as the jurisdiction of the High Court under Article 226 - or for that matter, the jurisdiction of this Court under Article 32 - is concerned, it is obvious that the provisions of the Act cannot bar and curtail these remedies. It is, however, equally obvious that while exercising the power under Article 226/Article 32, the Court would certainly take note of the legislative intent manifested in the provisions of the Act and would exercise their jurisdiction consistent with the provisions of the enactment. Even while acting in exercise of the said constitutional power, the High Court cannot ignore the law nor can it override it.

224. Notwithstanding the fact that the petitioners have shown utter disregard to the provisions of the Acts and have failed to take

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advantage of the amnesty scheme given to revive their registration, this Court is inclined to quash the impugned orders with grant consequential reliefs subject to terms.

225. The provisions of the GST enactments cannot be interpreted so as to deny the right to carry on Trade and Commerce to a citizen and subjects. The constitutional guarantee is unconditional and unequivocal and must be enforced regardless of the defect in the scheme of the GST enactments. The right to carry on trade or professoin also cannot be curtailed. Only reasonable restriction can be imposed. To deny such rights would militate against their rights under Article 14, read with Article 19 (1)(g) and Article 21 of the Constitution of India.

226. As original or as appellate authority exercising power under the respective enactments, quasi judicial officers were bound by the provisions of the Act and the limitation under it, they have acted in accordance with

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law. They cannot look beyond the limitations prescribed under provisions of the Act. Therefore, no fault can be attributed to their action.

227. This is a fit case for exercising the power under Article 226 of the Constitution of India in favour of the petitioners by quashing the impugned orders and to grant consequential relief to the petitioners. By doing so, the Court is effectuating the object under the GST enactment of levying and collecting just tax from every assessee who either supplies goods or service. Legitimate Trade and Commerce by every supplier should be allowed to be carried on subject to payment of tax and statutory compliance. Therefore, the impugned orders deserve to be quashed.

228. These petitioners deserve a chance and therefore should be allowed to revive their registration so that they can proceed to regularize the defaults. The authorities acting under the Act may impose penalty with the

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gravity of lapses committed by these petitioners by issuing notice. If required, the Central Government and the State Government may also suitably amend the Rules to levy penalty so that it acts as a deterrent on others from adopting casual approach.

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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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.

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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 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.

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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."

6. Since the issue involved in this writ petition is similar, the writ

petition is disposed of in terms of the guidelines provided in the order in

Tvl.Suguna Cutpiece vs. Appellate Deputy Commissioner (ST) (GST) and

others (cited supra). No costs.

28.03.2023

NCC:Yes/No Index:Yes/No Speaking/Non-speaking order

mbi

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P.T.ASHA, J.

mbi