Non-Filing of GST Return not an objective criteria to cancel GST retrospectively [Read Judgement]

The Delhi High Court in the matter of SHREE BALAJI TRANSPORT Vs. THE COMMISSIONER OF CENTRAL TAX APPEALS has ruled out that Non-Filing of GST Returns is not an objective criterion to cancel GST retrospectively.

The petitioner was in the business of transport and possessed a GST registration. A show cause notice was issued to the petitioner on 08.11.2022 calling upon the petitioner to show cause as to why the registration be not cancelled for the reason “returns furnished by you under Section 39 of the Central Goods and Services Tax Act, 2017.”

Though the notice does not specify any cogent reason, there is an observation in the notice stating “failure to furnish returns for a continuous period of six months”. The show cause notice requires the petitioner to appear before the undersigned i.e. authority issuing the notice. The notice does not give the name of the officer or place where the petitioner has to appear and merely states “jurisdiction officer”.

Further, the order dated 07.02.2023 passed on the show cause notice merely refers to the reply filed by the petitioner on 09.12.2022 and does not give any reasons for the cancellation of the registration. It, however, states that the registration is liable to be cancelled for the following reason “file all returns and pay all dues, if any”. The order further states that the effective date of cancellation of registration is 31.03.2022 i.e. a retrospective date.

We notice that the show cause notice as well as the impugned order of cancellation, are themselves vitiated on account of lack of reason and clarity. The appeal has been dismissed solely on the grounds of limitation. Since the very foundation of the entire proceedings i.e. show cause notice and the order of cancellation is vitiated, we are of the view that no purpose would be served in relegating the petitioner to the stage of an appeal.

In terms of Section 29(2) of the Central Goods and Services Tax Act, 2017, the proper officer may cancel the GST registration of a person from such date including any retrospective date, as he may deem fit if the circumstances set out in the said sub-section are satisfied. The registration cannot be cancelled with retrospective effect mechanically. It can be cancelled only if the proper officer deems it fit to do so. Such satisfaction cannot be subjective but must be based on some objective criteria. Merely, because a taxpayer has not filed the returns for some period does not mean that the taxpayer’s registration is required to be cancelled with a retrospective date also covering the period when the returns were filed and the taxpayer was compliant.

It is important to note that, according to the respondent, one of the consequences for cancelling a taxpayer’s registration with retrospective effect is that the taxpayer’s customers are denied the input tax credit availed in respect of the supplies made by the taxpayer during such a period. Although we do not consider it apposite to examine this aspect but assuming that the respondent’s contention in this regard is correct, it would follow that the proper officer is also required to consider this aspect while passing any order for cancellation of GST registration with retrospective effect. Thus, a taxpayer’s registration can be cancelled with retrospective effect only where such consequences are intended and are warranted.

The show cause notice does not even state that the registration is liable to be cancelled from a retrospective date.

The petition is allowed. The impugned show cause notice dated 08.11.2022, the order of cancellation dated 07.02.2023 and the order in appeal dated 24.08.2023 are accordingly set aside the petitioner is restored. Petitioner shall now file the returns for the relevant period up to date within a period of two weeks from today.

However, the respondent would be at liberty to initiate appropriate proceedings in accordance with law after giving a proper show cause notice containing complete details, if so advised. Further, this order would not preclude the respondent from initiating any steps in accordance with law, if it is found that the petitioner had violated any provisions of the Act.

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