CASE NAME: Om Prakash Mishra Vs State Of UP
Brief facts and crux: The present petition has been filed challenging the order dated 15.03.2019 whereby the registration of the petitioner’s firm has been canceled in view of the exercise of the power under section 29 of the CGST Act as well as the appellate order dated 29.03.2022 whereby the appeal has been dismissed as being beyond the period prescribed for filing of an appeal under section 107(4) of the CGST Act.
The counsel for the petitioner argues that the order of canceling the registration under section 29 of the Act was without the issuance of any show cause notice. He further argues that even otherwise, the mandate of section 29 is to pass an order after giving an opportunity of hearing, which according to him has admittedly not been given, inasmuch as it records that no one has appeared for a hearing, he further argues that even otherwise the order passed is wholly arbitrary and does not reflect any application of mind. He thus argues that the reasoning is a heart and soul of any administrative or a quasi judicial order, which is absent from the plain reading of the order dated 15.03.2019 as contained in Annexure no.2.
He argues that the appeal preferred by the petitioner was beyond the prescribed period of limitation as wife of the petitioner had suffered a heart attack and within a week thereafter the petitioner also suffered a heart attack and were undergoing the medical treatment and the medical certificates to that effect are on record at page 44 of the writ petition. He further argues that all the papers with regard to the registration of the Firm were with the authorized representative of the petitioner who unfortunately also died without giving any information about the case to the petitioner. The death certificate is on record as Annexure no.8. He argues that the power to condone the delay is prescribed under section 107(4) of the Act, which cannot be done beyond one month after three months, which is prescribed for filing the appeal.
In any case, he argues that although the appellate order dismissing the appeal as being beyond the limitation, prima facie cannot be argued, however, he insists that the order dated 15.03.2019 should be subject to the judicial review by this Court as the same suffers from the vice of non-observance of the principle of natural justice. He argues that it was incumbent upon the respondent authority to have given a hearing. He further argues that even otherwise, it was incumbent upon the authority to have recorded the reasons for passing the order, which is absent in the order dated 15.03.2019, as such, the said order being in clear violation of the principle of natural justice deserves to be set aside.
The Standing Counsel, on the other hand, argues that no reply to the show cause notice was given by the petitioner and the petitioner did not even attend the hearing and it is evident from the order dated 15.03.2019 as such the authority had taken all the steps for complying with the principle of natural justice. He argues that the authority concerned had made all efforts for compliance, which the petitioner did not avail and even the appeal was filed beyond the prescribed period of limitation, as such, the writ petition deserves to be dismissed.
Considering the submissions made at the bar and also the fact that the appellate tribunal has not yet been created as is prescribed under the Act, this court is to consider the validity of both the orders under challenge. I am not inclined to accept the submission of the counsel for the petitioner in so far as it relates to the appellate order dated 29.03.2022. However, I am inclined to accept the submission of the petitioner made against the order dated 15.03.2019. A perusal of the Annexure no.2, makes it clear that no reasons whatsoever have been recorded while passing the order of cancellation of the registration of the petitioner’s firm. The order clearly being without any reason cannot be accepted to be an order in accordance with law.
It is essential that every administrative authority or a quasi-judicial authority should indicate the reasons, howsoever, brief they may be before passing an order of the nature that has been done by the authority. The order passed dated 15.03.2019 has a very harsh consequence and the same being without any reason whatsoever, fails to satisfy the test of a judicial order and suffers from the vice of violation of Article 14 of the Constitution of India, as such, the order dated 15.03.2019 is set aside with a direction to the petitioner to file his response to the show cause notice before the respondent no.3 who shall pass a fresh order after giving an opportunity of hearing to the petitioner with all expedition. The petitioner would be at liberty to place whatever documents he pleases to rely upon in support of his defense. In view of the fact that the order dated 15.03.2019 is set aside, the appellate order, although not interfered with, is also set aside.
The writ petition is allowed in terms of the said order.
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