M/S J M D Bricks Unit v. The Union Of India Through The Secretary

IN THE HIGH COURT OF JUDICATURE AT PATNA

Civil Writ Jurisdiction Case No.5676 of 2023 ====================================================== M/S J M D Bricks Unit having its office at Village and PO- Gorigama Dih, supna Saraiya PS.- Saraiya District - Muzaffarpur, Bihar, 844120 through its Proprietor, Nagendra Kumar (Male), Aged about 50 Years, S/o Shankar Shahi, Residing village and PO- Goridgama Dih, Supna Sariaya PS. Saraiya DistrictMuzaffarpur, State- Bihar. ... ... Petitioner/s

Versus

1.

The Union of India through the Secretary Department of Revenue, Ministry of Finance, North Block, New Delhi-110001.

2.

The Secretary Department of Revenue, Ministry of Finance, North Block, New Delhi-110 001.

3.

The State of Bihar through the Commissioner cum Secretary, Commercial Tax Department, Govt. of Bihar, Patna.

4.

The Commissioner cum Secretary, Commercial Taxes Department, Govt. of Bihar, Patna.

5.

The Commissioner of Central GST, Patna, Bihar. 6.

The Additional Commissioner of Central GST (Appeals), Patna, Bihar. 7.

The Superintendent, Central GST Muzaffarpur East Range, Muzaffarpur, Bihar.

... ... Respondent/s ====================================================== Appearance :

For the Petitioner/s :

Mr.Madan Kumar, Advocate For the Respondent/s :

Dr. K.N.Singh, ASG Mr. Anshuman Singh, Sr. SC, CGST & CX For the State :

Mr. Vivek Prasad, P-7 ====================================================== CORAM: HONOURABLE THE CHIEF JUSTICE and HONOURABLE MR. JUSTICE MADHURESH PRASAD ORAL JUDGMENT (Per: HONOURABLE THE CHIEF JUSTICE) Date : 24-04-2023 The petitioner is aggrieved with the cancellation of registration by Annexure-P/2, order dated 12.07.2022. An appeal was filed which was delayed, which also stood rejected. Insofar as the Bihar Goods and Services Tax Act is concerned, now there is no Tribunal constituted for the State.

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2. In such circumstances, we have looked at the order at Annexure-P/2, especially since the learned counsel for the petitioner has argued that it is a non-speaking order. We see from the order that there is no reason stated as to why the cancellation was ordered and not even the subject of the notice is referred to in the order.

3. It is the submission of the learned counsel for the State that the form GST REG-19 has been adopted by the Assessing Officer.

4. We extract form GST REG-19:-

5. As we see from the Bihar Goods and Services Taxes Rules, 2017, GST REG-19 has a specific column where

3/4 reasons have to be assigned. However, the Assessing Officer seems to be laboring under the belief that when an assessee does not appear or an objection is not filed, no reasons have to be assigned.

6. We cannot countenance the said order, especially when there is absolutely no reason stated regarding the cancellation of registration.

7. We also notice the judgment of another Hon'ble Division Bench of this Court passed in Manoj Kumar Sah versus The State of Bihar and Anr. in C.W.J.C. No. 18307 of 2022, wherein it has been stated so:- " It cannot be disputed that with the passing of the said order, petitioner is liable to both civil and penal consequences. To say the least, the authority ought to have at least referred to the contents of the show cause and the response thereto, which was not done. Not only the order is nonspeaking, but cryptic in nature and the reason of cancellation not decipherable therefrom. Principles of natural justice stand violated and the order needs to be quashed as it entails penal and pecuniary consequences. "

8. The impugned order in the instant writ petition also suffers from the very same illegality which has been pointed out by the Division Bench. In such circumstances, we set aside the order dated 12.07.2022 and direct reconsideration of the issue.

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9. In this context, we also notice that notification No. 3 of 2023 has been brought in by the Central Government on the recommendations of the G.S.T. Council wherein if the cancellation has been effected for failure to file returns under clause (b) or clause (c) of Sub-section (2) of Section 29, there is a further period allowed up to 30.06.2023, wherein the registered person can apply for revocation of cancellation. This is also subject to the condition that the return should be filed up to the effective date of cancellation of registration and the payment of tax, interest, penalty and late fee in respect of such returns have also been made. The assessee would also be entitled to avail of the said remedy if the cancellation has been effected under clause (b) or clause (c) of Sub-section (2) of Section 29.

10. The writ petition stands allowed.

(K. Vinod Chandran, CJ) ( Madhuresh Prasad, J) sujit/- AFR/NAFR NAFR CAV DATE Uploading Date 27.04.2023 Transmission Date