2025 (3) TMI 545 - HC - GST

Challenge to demand notice - no proper service of notice - it is submitted that since no notice was uploaded under the heading of notices and orders the petitioner could not learn about the issuance of such notice and therefore could not submit its response to the respondents - violation of principles of natural justice - HELD THAT - An identical issue as to whether the notice put under the heading additional notices and orders on the common portal may be taken to have been duly served upon the Assessee or not arose for consideration before the Hon ble Division Bench of the Delhi High Court in the case of Anhad Impex 2024 (2) TMI 1070 - DELHI HIGH COURT . It was found that the show-cause notice was uploaded on the portal in the category of additional notices and orders which were not easily accessible hence skipped the attention of the petitioner. The Hon ble Court having noticed that the petitioner had made out a case that he had missed out the receipt of the notice therefore could not respond to the show-cause notice quashed the impugned order dated 29.11.2023 and directed the respondent to enable the petitioner to file a response to the show-cause notice within a period of 30 days and the respondent was directed to adjudicate the showcause notice. It is also noticed that Section 169 lays down the methods for service of notice/summons/order/any other communication. Clause(e) provided one of the modes of service by making it available on the common portal. We find from reading of Sub-Section(2) and Sub-Section (3) that the legislators have provided for deemed service of notice in those cases where the notice summons order or decision have been served by tendering or publishing a copy thereof and affixed in the manner provided in Sub- Section(1). The notice or summons or any communication sent by registered post or speed post shall be deemed to have been received by addressee on the expiry of the period normally taken by such post in transit unless the contrary is proved. In course of argument a question arose as to whether Assessee is required to go on and examine the common portal everyday to find out whether there is any notice summon or communication relevant to him or in his respect why while putting the notice on the common portal in order to facilitate the Assesee to know about the placement of the notice on the common portal an E-mail be not sent simultaneously on the registered E-mail address of the Assessee - the purpose behind service of notice is to make an Assessee aware of the notice/summons/orders/decisions or any communication issued by the Department. Thus this aspect of the matter is required to be looked into by the Department in order to ensure itself that the notices are duly served. For the present this Court is not going into this issue and keeping it open to be considered in an appropriate matter. In the meantime the Department may take a view on it if so advised. Conclusion - For notices to be considered duly served under Section 169 they must be easily accessible and placed under the appropriate heading on the GST portal. The impugned order is quashed and set aside. Application allowed.

Summary

1. ISSUES PRESENTED and CONSIDERED

The core legal issue considered in this case was whether the impugned order and demand notice issued under Section 73(9) of the GST Act, 2017, were liable to be quashed on the grounds that the petitioner was not duly served with the notices, show-cause notice, and reminders. This issue was primarily centered around the service of notices via the GST portal and whether the notices placed under the heading 'additional notices and orders' constituted proper service under Section 169 of the GST Act, 2017.

2. ISSUE-WISE DETAILED ANALYSIS

Relevant legal framework and precedents:

The legal framework revolves around Section 169 of the GST Act, 2017, which outlines the methods for serving notices, orders, summons, and other communications. It specifies that such communications can be served by making them available on the common portal. The case also references precedents from the Delhi High Court and the Allahabad High Court, which dealt with similar issues of service via the GST portal.

Court's interpretation and reasoning:

The Court interpreted Section 169 to determine if the notices placed under 'additional notices and orders' could be considered duly served. The Court noted that the purpose of serving notices is to ensure the taxpayer is aware of any communication from the Department. The Court referenced similar cases where notices placed under 'additional notices and orders' were deemed not easily accessible, thus justifying interference.

Key evidence and findings:

The petitioner provided a screenshot of the GST portal showing that notices were placed under 'additional notices and orders' rather than 'notices and orders'. The Court found that the respondents did not deny this assertion and failed to provide specific averments that the notices were placed under the correct heading.

Application of law to facts:

The Court applied Section 169 and the principles from the cited precedents to the facts, concluding that the petitioner was not properly served due to the placement of notices under the incorrect heading on the portal. This lack of proper service justified setting aside the impugned order and demand notice.

Treatment of competing arguments:

The State argued that placing notices on the common portal fulfilled the mandate of Section 169, regardless of the heading under which they were placed. However, the Court found this argument insufficient, emphasizing the need for notices to be easily accessible to ensure proper service.

Conclusions:

The Court concluded that the petitioner had made a case for interference due to the improper service of notices. The impugned order and demand notice were set aside, and the petitioner was granted an opportunity to respond to the show-cause notice.

3. SIGNIFICANT HOLDINGS

The Court held that the placement of notices under 'additional notices and orders' did not constitute proper service under Section 169 of the GST Act, 2017. This decision aligns with the principles established in similar cases by the Delhi and Allahabad High Courts.

Verbatim quotes of crucial legal reasoning:

"The purpose behind service of notice is to make an Assessee aware of the notice/summons/orders/decisions or any communication issued by the Department. Thus, this aspect of the matter is required to be looked into by the Department in order to ensure itself that the notices are duly served."

Core principles established:

The Court established that for notices to be considered duly served under Section 169, they must be easily accessible and placed under the appropriate heading on the GST portal. The decision emphasizes the importance of ensuring taxpayers are adequately informed of communications from the Department.

Final determinations on each issue:

The Court determined that the impugned order and demand notice were to be set aside due to improper service. The petitioner was directed to appear before the Respondent No. 4 and submit a response to the show-cause notice, after which a fresh order of assessment would be passed.