Writ can be entertained against the order dismissing the appeal as time barred

Facts: –

• The appellant is working as mason/painting professional and having its GST registration in the state of Uttarakhand. The appellant failed to file his return for continuous period of six months as required under the act.  Thus, its registration was cancelled on 21.09.2019.
• The appellant preferred an appeal before the First Appellate Authority against the order of cancellation, however the same was dismissed on the ground of delay.
• Thereafter, the Appellant/Petitioner filed a writ petition before the Court, which was also dismissed as not maintainable.

Appellant’s Submissions: –

• That relying on the decision of Whirlpool Corporation Vs Registrar of Trade Marks, (1998) 8 Supreme Court Cases 1, it was submitted that even if there is an alternative remedy available, the High Court can exercise its jurisdiction in appropriate cases, it’s the absolute jurisdiction of the High Court.
• The Statute does not provide for any prohibition against exercise of Writ Jurisdiction under Article 226 of the Constitution by the High Court. The practice of entertaining the writ petition, where alternative remedy is available, is an internal mechanism which the Court has imposed upon themselves.
• Further reliance was placed on the Full Bench decision of Gujarat High Court in Panoli Intermediate (India) Pvt. Ltd. Vs Union of India and others, wherein the question ‘When if the statutory remedy or appeal under Section 35 is barred by the law of limitation whether in a Writ Petition under Article 226 of the Constitution of India, the order passed by the original adjudicating authority could be challenged on merit?’ was answered in affirmative.

Held: –

• The Hon’ble Court after considering the submissions and the facts of the case, found that that a notice was given on the website, which is not sufficient and a personal notice has to be given before cancellation of registration. Therefore, the Court can invoke its jurisdiction under Article 226 of the Constitution and the order passed by the learned Commissioner can be interfered in a writ jurisdiction.
• However, viewing the matter from another angle, it was observed that the Parliament as well as the Legislature is very strict, insofar as, that is does not provide an unlimited jurisdiction on First Appellate Authority to extend limitation beyond one month after the expiry of prescribed limitation. Thus, in such cases the appellant/petitioner is put to hardship and left without remedy.
• It was found that in the present case the appellant is a semi-skilled labour working as a painter and now-a-days bills for any work executed are drawn on-line, in most cases the payments are direct to bank on production of the bill with GST registration number. Such denial of registration of GST number, therefore, affects his right to livelihood. Further, if he is denied its livelihood because of the fact that his GST registration number has been cancelled, and that he has no remedy of appeal and if we allow the situation so prevailing to continue, then it would be violative of Article 21 of the Constitution of India.
• Thus, the Writ petition is maintainable and the Learned Single Judge should have acted upon its Judicial conscience enriched by judicial experience and practical wisdom, and held that writ petition should be entertained.
• Thereafter, the Hon’ble Court, viewing the matter from another angle, taking note of the law stated in Section 107 ‘Appeal to Appellate Authority’ of Uttarakhand GST Act, 2017, observed that it evident from Sub-section (1) of Section 107 that any person aggrieved by any decision under the Act or the Central Goods and Services Tax Act by an adjudicating authority may appeal to such Appellate Authority as may be prescribed within the time frame.
• The Hon’ble Court considering the question ‘Whether the Assistant Commissioner of GST, whose order is in challenge in this case, is an adjudicating authority, or not?’ took reference of the decision of Hon’ble Supreme Court in Radha Krishan Industries Vs State of Himachal Pradesh and others, (2021) 6 Supreme Court Cases 771, wherein it was held that ‘It is appropriate to take note of the fact that Sub-Section (1) of Section 107 of the H.P. Act, which is almost pari materia with the Sub-Section (1) of the Section 107 of the Uttarakhand Act, which provides a forum for appeal against an order passed by an adjudicating authority. Section 2(4) of the H.P. Act provides that “adjudicating authority” means any authority, appointed or authorised to pass any order or decision under this Act, but does not include the Commissioner, Revisional Authority, the Authority for Advance Ruling, the Appellate Authority for Advance Ruling, the Appellate Authority and the Appellate Tribunal.’
• Further Section 2(4) of the Uttarakhand Act defines ‘adjudicating authority’ to mean any authority, appointed or authorised to pass an order or decision under this Act, but does not include the Commissioner, Revisional Authority etc. The Provisions of Uttarakhand Act is similar with the definition of ‘adjudicating authority’ provided in the H.P. Act.
• The Hon’ble Court taking note of Section 3 of the Uttarakhand Act, which provides for appointment of class of officers and Section 5 which provides for ‘Powers of officers’, and Section 2(91) which provides for ‘proper officer’ under the Act, found that the Assistant Commissioner acts under the control & support of Commissioner and nowhere in the Act it is provided that he shall act independently to the duties assigned by the Commissioner. Therefore, the observation of the Hon’ble Supreme Court, i.e., the Commissioner is not an adjudicating authority, hence an appeal will not lie against the orders passed by him under Section 107 of the Uttarakhand Act shall also be applicable to any orders passed by the Assistant Commissioner, be it attachment of property or cancellation of GST registration number.
• The Hon’ble Court considering the overall facts, and the law applicable, held that the learned Single Judge has committed an error by holding that writ petition is not maintainable, thus, the same requires to be set aside. However, the matter was remanded back by the Hon’ble Court as the learned Single Judge did not give any finding on the merits regarding claim of the appellant/petitioner with respect to cancellation of GST registration number.

The Hon’ble Court with the above findings set aside order dated 30.09.2021 and allowed the Special appeal filed by the appellant/petitioner.

To read the complete judgment 2024 Taxo.online 1179