2024(03)LCX0359

Andhra Pradesh High Court

Raghavaiah Thelapalli

Versus

Assistant Commissioner

WRIT PETITION NO: 1743 OF 2024 decided on 07/03/2024

IN THE HIGH COURT OF ANDHRA PRAD

IN THE HIGH COURT OF ANDHRA PRADESH :: AMARAVATI
(Special Original Jurisdiction)

THURSDAY, THE SEVENTH DAY OF MARCH
TWO THOUSAND AND TWENTY FOUR

PRESENT

THE HON’BLE SRI JUSTICE RAVI NATH TILHARI
AND
THE HON’BLE SRI JUSTICE HARINATH.N

WRIT PETITION NO: 1743 OF 2024

Between:

Raghavaiah Thelapalli, 24/2/435/2, Saraswathi Nagar, Tekkemitta, SPSR Nellore District, Andhra Pradesh, represented by its Partner, Sri Raghavaiah Thelapalli.

...PETITIONER

AND

1. Assistant Commissioner, Nellore - II Circle, Nellore.
2. State of Andhra Pradesh, represented by its Special Chief Secretary, Revenue (CT) Department, A.P. Secretariat, Velagapudi, Amaravathi Mandal, Guntur District.

...RESPONDENTS

Petition under Article 226 of the Constitution of India praying that in the circumstances stated in the affidavit filed therewith, the High Court may be pleased to issue a Writ or order or direction particularly one in the nature of Writ of Mandamus setting aside the Order for Cancellation of Registration passed by the first respondent in Form GST REG -19 vide Ref. NO.ZA3706230276695, dated 16.06.2023 as arbitrary, illegal, against Principles of Natural Justice, contrary to-the provisions of the CGST Act, 2017/ APGST Act 2017, and contrary to the Judicial pronouncements of this Hon'ble Court on the self-same subject.

lA NO: 1 OF 2024

Petition under Section 151 CPC praying that in the circumstances stated in the affidavit filed in support of the writ petition, the High Court may be pleased to suspend the operation of the Order for Cancellation of Registration passed by the first respondent in Form GST REG -19 vide Ref. NO.ZA3706230276695, dated 16.06.2023, or to pass such further or other orders as this Hon'ble Court may deem fit and proper in the circumstances of the case, pending disposal of the above writ petition.

Counsel for the Petitioner : SRI S. SURI BABU
Counsel for the Respondents: GP FOR COMMERCIAL TAX

The Court made the following: ORDER

IN THE HIGH COURT OF ANDHRA PRADESH
AT AMARAVATI
(Special Original Jurisdiction)

THURSDAY, THE SEVENTH DAY OF MARCH
TWO THOUSAND AND TWENTY FOUR

PRESENT

THE HONOURABLE SRI JUSTICE RAVI NATH TILHARI

THE HONOURABLE SRI JUSTICE HARINATH.N

WRIT PETITION NO: 1743/2024

Between:

Raghavaiah Thelapalli                                                          ...PETITIONER

                                                         AND

Assistant Commissioner and Others                              ...RESPONDENT(S)

Counsel for the Petitioner:

1.S SURI BABU

Counsel for the Respondent(S):

1.GP FOR COMMERCIAL TAX (AP)

The Court made the following:

Order: (per Ravi Nath Tilhari,J)

Heard Sri S. Suri Babu, learned counsel for the petitioner and Sri Shreyas Reddy, learned Government Pleader for Commercial Tax for the respondents. This writ petition under Article 226 of the Constitution

2. of India has been filed for the following relief:

“Pleased for the aforesaid reasons, the petitioner prays that this Honble Court may be pleased to issue a Writ or order or direction particularly one in the nature of Writ of Mandamus setting aside the Order for Cancellation of Registration passed by the first respondent in Form GST REG-19 vide Ref No. ZA3706230276695 dated 16.06.2023 as arbitrary, illegal, against Principles of Natural Justice, contrary to the provisions of the CGST Act, 2017/APGST Act 2017, and contrary to the Judicial pronouncements of this Hon’ble Court on the selfsame subject and to pass. ”

3. Learned Government Pleader has received instructions. However, inspite of opportunity granted vide order dated 16.02.2024, the counter affidavit has not been filed.

4. Considering the nature of the controversy and the submissions advanced, no fruitful purpose would be served in keeping the petition pending.

4. The challenge is to the order dated 16.06.2023 of cancellation of the petitioner’s registration of GST. Previously show cause notice dated 08.05.2023 was given to the petitioner to which no reply was filed.

6. Learned counsel for the petitioner submits that the petitioner could not submit the reply to the show cause notice as the person who is handling the GST matter of the petitioner’s firm left abruptly and petitioner aware of the issuance of the said show cause notice. He further submits that the managing partner of petitioner’s firm i.e., the deponent, was not able to concentrate on the business operations as he was attacked with paralytic stroke. He submits that the order is in the violation of principles of natural justice.

7. Learned counsel for the petitioner further submits that the impugned order also suffers from non-application of mind. The petitioner admittedly could not submit any reply but the order mentions that “whereas reply to the show cause notice has been submitted vide ARN Not available”.

8. The Cancellation of the petitioner’s registration certificate is on the ground that the petitioner did not submit the returns for the period from September, 2022 to November, 2023 under Section 29(2) of COST Act, 2017.

9. Learned counsel for the petitioner further submits that petitioner has already paid amount of Rs. 13,26,788/- (P5) towards the discharge of his liability and he is also ready to file the returns for activation of registration certificate. But in view of the order of cancellation, it is not possible to do so.

10. Learned Government Pleader submits that he has instructions to submit that if the petitioner files the returns, his GST registration can be restored.

11. Learned Government Pleader further submits that though the impugned order mentions that the reply to the show cause notice has been submitted but it is also mentioned that vide ‘ARN Not Available’. He submits that, that means that the reply is not submitted and consequently the argument of the learned counsel for the petitioner that the order suffers from non application of mind is unsustainable.

12. We have considered the submissions of the learned counsels for the parties and perused the material on record.

13. Admittedly, the petitioner did not file reply to the show cause notice we find force in the submission of the learned counsel for the petitioner that the order suffers from non - application of mind and has been passed mechanically. It is reflective from the order itself a part of which reads under:

".......

This has reference to show cause notice issued dated 08.05.2023.

Whereas reply to the show cause notice has been submitted vide ARN NOT AVAILABLE; and whereas, the undersigned on examination of your reply to show cause notice and based on record available with this office is of the opinion that registration is liable to be cancelled for following reason(s):

Section 29(2)(c) - Person, other than paying tax u/s 10, failed to furnish returns for prescribed periods.

.........."

14. In para-4 of the affidavit the petitioner has specifically stated the reason for not filing the reply before the authority, i.e., the same reasons as argued before us and mentioned in para 6 of this (supra) judgment. On the said point there is no contrary instructions to the learned Government Pleader. Any counter affidavit denying the averments in para-4, of the writ affidavit, has not been filed inspite of opportunity granted, has also annexed documents (P3) in support of para 4 of the writ affidavit. We have no reason to disbelieve the same. Consequently, we are of the view that the cause shown for not being able to file the reply to show cause notice The petitioner IS sufficient. The petitioner deserves opportunity of hearing to be granted in consonance with the principles of natural justice.

15. Considering overall facts and for the aforesaid reasons, we allow the writ petition and quash the impugned order dated 16.06.2023 with further direction that, pursuant to the show cause notice dated 08.05.2023(P2), the petitioner shall submit the reply within a period of three (03) weeks from the date of receipt of copy of this order, along with the copy of this order to the competent authority, who shall pass appropriate orders afresh within the further period of three (03) weeks in accordance with law, keeping in view that petitioner has already paid is also ready to file the returns. amount of Rs.13,26,788/- (P5) and is also ready to file the returns.

16. Writ Petition stands allowed partly, in the aforesaid terms.

       No order as to costs.

As a sequel thereto, miscellaneous petitions, if any pending, shall also stand closed.

Sd/- P. VINOD KUMAR
ASSISTANT REGISTRAR

//TRUE COPY//

SECTION OFFICER

To,

1. The Assistant Commissioner, Nellore - II Circle, Nellore.
2. The Special Chief Secretary, Revenue (CT) Department, State of Andhra Pradesh, A.P. Secretariat, Velagapudi, Amaravathi Mandal, Guntur District
3. One CC to Sri S. Suri Babu, Advocate [OPUC]
4. Two CCs to GP for Commercial Tax, High Court of Andhra Pradesh. [OUT]
5. Three C.D. Copies

HIGH COURT

DATED:07/03/2024

ORDER

WP.No.1743 of 2024

PARTLY ALLOWING THE W.P.
WITHOUT COSTS