Madras High Court
Tvl.Sunpenta Mining Servise Private ... vs The Assistant Commissioner (St) on 22 September, 2021
Author: M.Sundar
Bench: M.Sundar
W.P.Nos.20083 and 20086 of 2021
and W.M.P.Nos.21346, 21350 and 21352 of 2021
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 22.09.2021
CORAM
THE HON'BLE Mr.JUSTICE M.SUNDAR
W.P.Nos.20083 and 20086 of 2021
and
W.M.P.Nos.21346, 21350 and 21352 of 2021
Tvl.Sunpenta Mining Servise Private Limited,
Represented by its Director M.Kalaiselvan,
Second Floor, No.5/9-4, Navanithi Towers,
Junction Main Road, AVR Roundana,
Suramangalam, Salem. ... Petitioner in both WPs
-Vs.-
1. The Assistant Commissioner (ST),
Suramangalam Circle,
Salem.
2. The Appellate Deputy Commissioner (ST)(GST),
Salem and Erode. .. Respondent in both WPs.
Prayer in W.P.No.20083 of 2021:
Writ Petition filed under Article 226 of the Constitution of India
praying to issue a Writ of Certiorari, to call for the records on the files of
the 1st respondent in Ref.No.ZA330819048794Y dated 16.08.2019 and
quash the same as being without jurisdiction and authority of law and
contrary to the principles of natural justice.
1/12
https://www.mhc.tn.gov.in/judis/
W.P.Nos.20083 and 20086 of 2021
and W.M.P.Nos.21346, 21350 and 21352 of 2021
Prayer in W.P.No.20086 of 2021:
Writ Petition filed under Article 226 of the Constitution of India
praying to issue a Writ of Certiorari, to call for the records on the files of
the 2nd respondent in Appeal No & year 102/2021 dated 22.07.2021 and
quash the same as being without jurisdiction and authority of law and
contrary to the principles of natural justice.
For Petitioner in both W.Ps. : Mr.R.Senniappan
For Respondent in both W.Ps. : Ms.Amirta Dinakaran,
Government Advocate
******
COMMON ORDER
Captioned two writ petitions and 'writ miscellaneous petitions' ['WMPs' in plural and WMP in singular for the sake of convenience and clarity] are listed in the Admission Board before me.
2. Mr.R.Senniappan, learned counsel on record for writ petitioner in captioned two writ petitions and petitioner in WMPs is before me.
3. Ms.Amirta Dinakaran, learned State counsel accepts notice on behalf of both respondents in both captioned main writ petitions. 2/12 https://www.mhc.tn.gov.in/judis/ W.P.Nos.20083 and 20086 of 2021 and W.M.P.Nos.21346, 21350 and 21352 of 2021
4. Owing to the short point on which the captioned writ petitions turn, with the consent of both sides, main writ petitions are taken up and are being heard out.
5. Short facts imperative for appreciation of this common order (to be noted, this common order will dispose of all the captioned writ petitions and three WMPs therein) are that the writ petitioner is in mining service business; that the writ petitioner was registered under the 'The Tamil Nadu Goods and Services Tax Act, 2017 (Tamil Nadu Act 19 of 2017)' [hereinafter 'TN Goods ST Act' for the sake of convenience and clarity]; that there was some labour problems; that one of the directors resigned suddenly; that the writ petitioner-Company faced financial constraints; that all these led to cancellation of writ petitioner's registration under Section 29(2)(c) of TN Goods ST Act on the ground that the writ petitioner had not furnished returns for a continuous period of six months; that this cancellation is vide an 'order dated 16.08.2019 bearing reference No.ZA330819048794Y' [hereinafter 'first impugned order' for the sake of convenience and clarity]; that the writ petitioner 3/12 https://www.mhc.tn.gov.in/judis/ W.P.Nos.20083 and 20086 of 2021 and W.M.P.Nos.21346, 21350 and 21352 of 2021 assailed the first impugned order by way of statutory appeal under Section 107(1) of TN Goods ST Act in and by an appeal dated 15.07.2021; that the Appellate Authority dismissed the appeal on 22.07.2021 on the ground that it is barred by limitation (without going into the merits of the matter); that in the interregnum, the Central Government in exercise of its order making power under Section 172 of 'The Central Goods and Services Tax Act, 2017' [hereinafter 'Central Goods ST Act' for the sake of convenience and clarity] made an order dated 25.06.2020 wherein time for assailing cancellation of a registration order was extended upto 31.08.2020 (to be noted, it has to be assailed within 30 days from the date of service of cancellation order vide Section 30(1) of TN Goods ST Act); that this order made by the Central Government is primarily owing to the reason that many registered dealers were unable to get their cancellation of registration revoked despite having fulfilled all the requirements for revocation of cancellation, but could not apply for revocation of cancellation as the Statute under the GST regime is a new Act; that this is articulated in preamble portion of the Order; that thereafter vide notification i.e., notification No.34 of 4/12 https://www.mhc.tn.gov.in/judis/ W.P.Nos.20083 and 20086 of 2021 and W.M.P.Nos.21346, 21350 and 21352 of 2021 2021-Central Tax dated 29.08.2021, the Central Government extended the time further and extended time is up to 30.09.2021; that this means that the writ petitioner has time till the end of this month to apply for revocation of impugned order; that under such circumstances, the writ petitioner has come up with the captioned two writ petitions; that 'WP.No.20083' shall be referred to as 'I WP' and 'W.P.No.20086 of 2021' shall be referred to as 'II WP'; that vide I WP, first impugned order has been assailed; that vide II WP an order dated 22.07.2021 [hereinafter 'second impugned order' for the sake of convenience and clarity] made by the Appellate Authority has been assailed.
6. Learned counsel for writ petitioner makes a fair, simple and straight forward submission. Learned counsel submits that the writ petitioner took up the appeal route via Section 107 of TN Goods ST Act belatedly i.e., on 15.07.2021 owing to the reasons set out by writ petitioner-company (as captured supra) but the Appellate Authority has dismissed the appeal solely on the ground of limitation without expressing any view or opinion on the merits of the matter and therefore, 5/12 https://www.mhc.tn.gov.in/judis/ W.P.Nos.20083 and 20086 of 2021 and W.M.P.Nos.21346, 21350 and 21352 of 2021 if the order of the Appellate Authority is set at naught, writ petitioner will apply for revocation inter-alia under Section 30 of TN Goods ST Act, as writ petitioner still has time till 30.09.2021. Learned counsel also very fairly submits that the first impugned order is dated 16.08.2021 and the date of order can be taken as date on which it was served on writ petitioner which means that 30 days prescribed under Section 30(1) of TN Goods ST Act elapsed on 15.09.2019.
7. Responding to the above submissions, learned Revenue counsel on instructions, submitted that the writ petitioner, post first impugned order applied for another registration, obtained registration vide registration No.3388VC55476N3ZF and was/is carrying on business. Therefore, it cannot be gainsaid that the writ petitioner has been put to any disadvantage.
8. A scanned reproduction of another registration is as follows: 6/12
https://www.mhc.tn.gov.in/judis/ W.P.Nos.20083 and 20086 of 2021 and W.M.P.Nos.21346, 21350 and 21352 of 2021
9. By way of reply, learned counsel for writ petitioner submitted that the second registration does not save the day for the writ petitioner as the 'Input Tax Credit' ['ITC'] that has accrued qua earlier registration cannot now be taken advantage of by the writ petitioner. Owing to the order I propose to pass, I deem it appropriate to refrain myself from expressing any view or opinion on this submission. There is no disputation or disagreement before me that the aforementioned Order made by the Central Government being order dated 25.06.2020 and subsequent extension of time vide notification of Central Government dated 29.08.2021 applies mutatis mutandis to TN Goods ST Act. This undisputed obtaining position is recorded. 7/12 https://www.mhc.tn.gov.in/judis/ W.P.Nos.20083 and 20086 of 2021 and W.M.P.Nos.21346, 21350 and 21352 of 2021
10. Now, that the writ petitioner has time till 30.09.2021 to apply for revocation of cancellation of registration under Section 30 of TN Goods ST Act it is only fair and appropriate (owing to the facts and circumstances of the case on hand) that the writ petitioner is given an opportunity to apply for revocation taking advantage of extension time frame that has been given to writ petitioner and similarly placed persons by the Central Government. The fact that the Appellate Authority has disposed of/dismissed the appeal solely on the ground of limitation makes the task easier as no opinion on merits qua first impugned order i.e., cancellation of registration has been made by the Appellate Authority.
11. In the light of the narrative thus far, the following order is passed:
(a) The second impugned order i.e., order made by the second respondent in Appeal No.102 of 2021 being order dated 22.07.2021 is set aside solely to facilitate the 8/12 https://www.mhc.tn.gov.in/judis/ W.P.Nos.20083 and 20086 of 2021 and W.M.P.Nos.21346, 21350 and 21352 of 2021 writ petitioner to apply for revocation under Section 30 of TN Goods and ST Act;
(b) As the order of the Appellate Authority i.e., second respondent is set aside solely to facilitate the writ petitioner to get the advantage of extended time frame seeking revocation, it is made clear (though obvious) that no view or opinion on merits of the matter has been expressed qua second impugned order;
(c) It is open to the writ petitioner to apply for revocation under Section 30 of TN Goods and ST Act on or before 30.09.2021 and if the writ petitioner chooses to do so, a proper officer shall consider the revocation application on its own merits and in accordance with law and make an order as expeditiously as possible;
(d) For the purpose of abundant clarity, it is made clear that there is no expression of opinion regarding second registration obtained by the writ petitioner and that is also left open to the proper officer to decide in the 9/12 https://www.mhc.tn.gov.in/judis/ W.P.Nos.20083 and 20086 of 2021 and W.M.P.Nos.21346, 21350 and 21352 of 2021 course of taking a call on the application for revocation when made;
12. Captioned two main Writ Petitions are disposed of by this Common Order with the above directives. Consequently, connected WMPs are disposed of as closed.
13. WMP.No.21350 of 2021 has been filed to dispense with the production of original first impugned order. As the writ petitioner has filed a photo copy of the second impugned order, owing to reasons set out in supporting affidavit this WMP is ordered as prayed for. There shall be no order as to costs.
22.09.2021 Speaking/Non-speaking order Index: Yes/No Internet : Yes/No mk Note: Issue order copy on 23.09.2021 10/12 https://www.mhc.tn.gov.in/judis/ W.P.Nos.20083 and 20086 of 2021 and W.M.P.Nos.21346, 21350 and 21352 of 2021 To
1. The Assistant Commissioner (ST), Suramangalam Circle, Salem.
2. The Appellate Deputy Commissioner (ST)(GST), Salem and Erode.
11/12 https://www.mhc.tn.gov.in/judis/ W.P.Nos.20083 and 20086 of 2021 and W.M.P.Nos.21346, 21350 and 21352 of 2021 M.SUNDAR.J., mk W.P.Nos.20083 and 20086 of 2021 and W.M.P.Nos.21346, 21350 and 21352 of 2021 22.09.2021 12/12 https://www.mhc.tn.gov.in/judis/