# M/s Bhole Baba Construction v. State of U.P. & Ors

- **Citation:** (2024) 2 ILRA 187
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2024-01-24
- **Case number:** Writ Tax No. 1272 of 2023
- **Bench:** Shekhar B. Saraf
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/m-s-bhole-baba-construction-v-state-of-u-p-ors-51321
- **Pages:** 4

## Headnote

188 INDIAN LAW REPORTS ALLAHABAD SERIES
Taxation Law - U.P. Goods and Services
Tax Act, 2017 - Section 107 - Cancellation
of Registration - Petitioner challenged order
dated 18.01.2023 cancelling GST registration
and
appellate
order
dated
12.10.2023
dismissing appeal as time-barred - Held, original
order lacked application of mind, containing
contradictory
St.ments
acknowledging
petitioner's
reply
to
show-cause
notice
(09.01.2023) while stating no reply was
submitted - Non-reasoned order violates Article
14, as reasons are essential in quasi-judicial
proceedings, per Whirlpool Corporation Vs
Registrar of Trademarks and Om Prakash Mishra
Vs St. of U.P. - Surendra Bahadur Singh Vs St.
of U.P. followed, holding that non-reasoned
cancellation order, impacting Article 19 business
rights, can be challenged despite time-barred
appeal, as doctrine of merger inapplicable when
appeal not decided on merits - M/s Namo Narayan
Singh Vs St. of U.P. reinforced necessity of
reasoned orders - Impugned orders quashed,
petitioner directed to file reply to show-cause
notice within three weeks, adjudicating authority
to pass fresh order after hearing. (Para 4-7)

Writ petition allowed.

List of Cases Cited:

## Text

2 All. M/s Bhole Baba Construction Vs. State of U.P. & Ors.
187
disputes and promote efficiency and
fairness in tax administration. Tax laws are
complex and often subject to interpretation,
leading to disputes between taxpayers and
tax authorities. Limitation provides a
framework within which such disputes
must be resolved, thereby preventing undue
delays and ensuring that tax liabilities are
determined within a reasonable time frame.
This is crucial for both taxpayers and tax
authorities as it promotes legal certainty
and facilitates effective tax compliance.

9. Section 107 of the GST Act
prescribes a specific limitation period
within which appeals against certain
decisions must be filed. This limitation
period is integral to the functioning of the
appellate mechanism under the GST Act
and reflects the legislative intent to
expedite the resolution of tax disputes. By
imposing a time limit on the filling of
appeals, Section 107 aims to prevent undue
delayed in the adjudication process and
promote the efficient administration of the
GST regime. On the other hand, Section 5
of the Limitation Act provides for the
extension of prescribed periods in certain
exceptional circumstances, such as when
sufficient cause is shown for the delay.

10. In analyzing the conflicting
interpretations concerning the exclusion of
Section 5 of the Limitation Act as far as
Section 107 of the GST Act is concerned, it
is essential to consider the rationale behind
the exclusion of the Limitation Act in
certain special statues, particularly in the
context of taxation. Tax laws are often
characterized
by
strict
procedural
requirements and time-bound deadlines,
reflecting
the
need
for
expeditious
resolution of tax disputes to ensure revenue
certainty and fiscal stability.

11. The judgment rendered by the
Calcutta High Court in the matter of S.K.
Chakraborty & Sons (supra) fails to
adequately
consider
the
authoritative
pronouncements of the Supreme Court in
the cases of Singh Enterprises (supra) and
Hongo India (supra) and hence the said
judgment is of no precedential value, and
accordingly, the view expressed therein is
not accepted by this Court.

12. Taxing statutes like the GST Act
embody a comprehensive framework with
specific limitation provisions tailored to
expedite the resolution of tax-related
matters. Section 107 of the GST Act,
operates as a complete code in itself,
explicitly delineating limitation periods for
filing appeals and implicitly excluding the
application of general limitation provisions
such as Section 5 of the Limitation Act.

13. Accordingly, the present writ
petition is without any merit and is
dismissed.
----------
(2024) 2 ILRA 187
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 24.01.2024

BEFORE

THE HON'BLE SHEKHAR B. SARAF, J.

Writ Tax No. 1272 of 2023

M/s Bhole Baba Construction ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Sri Pranjal Shukla

Counsel for the Respondent:
C.S.C.
188 INDIAN LAW REPORTS ALLAHABAD SERIES
Taxation Law - U.P. Goods and Services
Tax Act, 2017 - Section 107 - Cancellation
of Registration - Petitioner challenged order
dated 18.01.2023 cancelling GST registration
and
appellate
order
dated
12.10.2023
dismissing appeal as time-barred - Held, original
order lacked application of mind, containing
contradictory
St.ments
acknowledging
petitioner's
reply
to
show-cause
notice
(09.01.2023) while stating no reply was
submitted - Non-reasoned order violates Article
14, as reasons are essential in quasi-judicial
proceedings, per Whirlpool Corporation Vs
Registrar of Trademarks and Om Prakash Mishra
Vs St. of U.P. - Surendra Bahadur Singh Vs St.
of U.P. followed, holding that non-reasoned
cancellation order, impacting Article 19 business
rights, can be challenged despite time-barred
appeal, as doctrine of merger inapplicable when
appeal not decided on merits - M/s Namo Narayan
Singh Vs St. of U.P. reinforced necessity of
reasoned orders - Impugned orders quashed,
petitioner directed to file reply to show-cause
notice within three weeks, adjudicating authority
to pass fresh order after hearing. (Para 4-7)

Writ petition allowed.

List of Cases Cited:

1. Surendra Bahadur Singh Vs St. of U.P.; Writ Tax
No. 172 of 2023, decided on 23.08.2023

2.
Whirlpool
Corporation
Vs
Registrar
of
Trademarks, Mumbai; (1998) 8 SCC 1

3. Om Prakash Mishra Vs St. of U.P.; Writ Tax No.
100 of 2022, decided on 06.09.2022

4. M/s Namo Narayan Singh Vs St. of U.P.; Writ
Tax No. 1476 of 2022, decided on 10.10.2023

(Delivered by Hon'ble Shekhar B. Saraf, J.)

1. Heard learned counsel for the
petitioner and Sri Ravi Shanker Pandey,
learned Additional Chief Standing Counsel
for the State.

2. This is a writ petition under Article
226 of the Constitution of India, wherein the
petitioner challenges the order in original for
cancellation of registration dated January 18,
2023 and the order dated October 12, 2023
passed in appeal under Section 107 of the
Uttar Pradesh Goods and Services Tax Act,
2017 (hereinafter referred to as "the Act").

3. Learned counsel appearing on behalf
of the petitioner submitted that the order for
cancellation of registration has been passed
without any application of mind whatsoever
and the same is clear from the very first two
lines of the order dated January 18, 2023. The
relevant part of the said order is quoted
below:

"This has reference to your reply
dated 09/01/2023 in response to the notice to
show cause dated 09/12/2022 Whereas no
reply to notice to show cause has been
submitted"

4. Learned counsel appearing on behalf
of the petitioner submits that in the first line,
the order states that a reply was filed by the
petitioner on January 9, 2023 whereas the
second line contradicts the above statement
saying that no reply was filed by the
petitioner. He relies upon a Division Bench
judgment of this Court in Writ Tax No.172 of
2023 titled as Surendra Bahadur Singh v.
State of U.P. and others decided on August
23, 2023, wherein the Division Bench has
held as follows:

"6. Learned counsel for the
petitioner argues that although no fault can
be found with the appellate order dismissing
the appeal as Appellate Authority does not
have the power to condone the delay in
terms of the scheme of the Act, however, he
argues that the order cancelling the
registration is without application of mind;
he draws my attention to the impugned
order dated 07.01.2023, which does not
2 All. M/s Bhole Baba Construction Vs. State of U.P. & Ors.
189
disclose any application of mind. He, thus,
argues that the quasi judicial order which
has an adverse effect on the right of the
petitioner to run business as guaranteed
under Article 19 of the Constitution of
India, the same has been done without any
application of mind which is neither the
intent of the Act nor can it be held to be in
compliance of the mandate of Article 14 of
the Constitution of India. He further argues
that as the appeal has not been decided on
merit, the doctrine of merger will have no
application and it is only the order dated
07.01.2023 which affects the petitioner and
as the same is devoid of any reasons, the
same can be challenged before this Court
as decided by the Hon'ble Supreme Court
in the case of Whirlpool Corporation v.
Registrar of Trademarks, Mumbai and Ors.
- (1998) 8 SCC 1.

7. He further places reliance on
the judgment of this Court in the case of
Om Prakash Mishra v. State of U.P. &
Ors.; Writ Tax No.100 of 2022 decided on
06.09.2022
wherein
this
Court
had
recorded
that
every
administrative
authority or a quasi judicial authority
should necessarily indicate reasons as
reasons are heart and soul of any judicial
or administrative order.

8. In the present case from the
perusal of the order dated 07.01.2023,
clearly there is no reason ascribed to take
such a harsh action of cancellation of
registration. In view of the order being
without any application of mind, the same
does not satisfy the test of Article 14 of
the Constitution of India, as such, the
impugned
order
dated
07.01.2023
(Annexure - 2) is set aside. The petition
is accordingly allowed.

9. It is, however, directed that
the petitioner shall file reply to the
show-cause notice within a period of
three
weeks
from
today.
The
Adjudicating Authority i.e. Assistant
Commissioner, Gonda shall proceed to
pass
fresh
order
after
giving
an
opportunity of hearing to the petitioner
and after considering whatever defence
he may take."

5.

Learned
counsel
for
the
petitioner
further
relies
upon
a
coordinate Bench judgment of this
Court in Writ Tax No.1476 of 2022
titled as M/s Namo Narayan Singh v.
State of U.P. and others decided on
October 10, 2023 to emphasis the point
that providing of reasons in order is of
essence in judicial proceedings.

6. In the present case, the facts are
similar to one in Surendra Bahadur
Singh's case (supra), wherein the
appeal was barred by time under
Section 107 of the Act. However, the
Division Bench in Surendra Bahadur
Singh's
case
(supra)
took
into
consideration the original order and set
aside the same being non-reasoned and
allowed the petitioner therein to file
reply to the show cause notice.

7. In light of the above, I am of the
view that the orders impugned herein
are liable to be set aside. Accordingly,
the order in original dated January 18,
2023 and the appellate order dated
October 12, 2023 are quashed and set
aside. The petitioner is directed to file
its reply to the show cause notice within
three
weeks
from
date
and
the
adjudicating authority is directed to
proceed de novo and pass order after
granting opportunity of hearing to the
petitioner.

8. With the above directions, the writ
petition is allowed.
190 INDIAN LAW REPORTS ALLAHABAD SERIES
----------
(2024) 2 ILRA 190
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 19.02.2024

BEFORE

THE HON'BLE SHEKHAR B. SARAF, J.

Writ Tax No. 1314 of 2019

M/s Indeutsch Industries Pvt. Ltd., Noida
 ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Sri Nishant Mishra

Counsel for the Respondent:
C.S.C.

Taxation Law - U.P. Goods and Services
Tax Act, 2017 - Section 129(3) - Penalty
for Incorrect Vehicle Number in E-Way Bill -
Petitioner
challenged
penalty
order
dated
22.06.2018
and
appellate
order
dated
22.06.2019 - Held, goods transported from SEZ
(Noida) to DTA (Delhi) with valid tax invoice, bill
of entry, and E-Way bill, but vehicle number in
E-Way bill (UP14DT-8219) differed from actual
vehicle (UP14BT-8220) due to transporter's lastminute change - Interception occurred hours
after dispatch, with all documents (tax invoice,
bill of entry, packing list) correct except vehicle
number - No evidence of tax evasion intent, as
customs duty and IGST paid, and bill of entry
reflected correct vehicle number - Department
failed to establish intent to evade tax, a
prerequisite for penalty under Section 129(3),
per Falguni Steels Vs St. of U.P. - Mere
technical/clerical
error
in
vehicle
number
insufficient
for
penalty,
as
no
financial
implications
shown
-
Appellate
authority
overlooked
transporter's
explanation
and
petitioner's documents - Impugned orders
quashed, penalty set aside, refund of deposited
amount ordered within four weeks. (Para 6-9)

Writ petition allowed.
List of Cases Cited:

1. Falguni Steels Vs St. of U.P.; (2024) 15
Centax 67 (All.)

(Delivered by Hon'ble Shekhar B. Saraf, J.)

(Judgment dictated in Open )

1. Heard Sri Nishant Mishra, learned
counsel appearing on behalf of the
petitioner and Sri Ravi Shankar Pandey,
learned Additional Chief Standing Counsel
for the respondents.

2. This is a petition under Article 226
of the Constitution of India, wherein the
writ petitioner is aggrieved by the order
passed in appeal dated June 22, 2019 and
the order dated June 22, 2018 imposing
penalty under Section 129(3) of the Uttar
Pradesh Goods and Services Tax Act, 2017
(hereinafter referred to as the 'Act').

Facts as narrated in the writ
petition are as follows :-

3. Petitioner is a company, engaged in
manufacturing
Artist
Brush
and
its
materials, for which Petitioner is duly
registered under the GST regime with
GSTN No.09AAACI2206F1Z2. Petitioner
is having its manufacturing unit established
in
Noida
Special
Economic
Zone
(hereinafter referred to as 'SEZ'). In normal
course of business, petitioner sold 102
boxes of Artist Brushes valuing Rs.
16,86,696.68/-
to
one
M/s
Pidilite
Industries
Ltd.,
Delhi
(GSTIN
No.07AAACP4156B1ZU)
vide
Tax
Invoice
No.18-
19/CEN/23
dated
14.6.2018, after charging Integrated Goods
and Service Tax (hereinafter referred to as
the 'IGST') at applicable rate of 18%. Since
the transaction in question was from a SEZ