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2025 (4) TMI 1308 - HC - GSTService of SCN - whether service of notice/order by making available in the Common Portal is valid? - HELD THAT - Submission of petitioner that Section 146 of the GST Act does not enable notifying common portal for serving notice/ orders/ communications thus service of notice/ order by making it available in the common portal would not constitute valid mode of service is untenable. Section 146 of GST Act provides that common portal may be notified for carrying out various functions and purpose of the Act. While the Government may in excersise of its power under Section 146 of GST Act identify the portal and notify the purpose for which it is to be employed however the purpose/ functions for which the common portal may be employed in terms of notification issued under Section 146 of the Act is not exhaustive. Sub-clause (d) to sub-section(1) to Section 169 of the GST Act while providing that the decision order summon notice shall be served by making it available in the common portal does not contemplate a notification under Section 146. Section 169 of the Act is a standalone independent provision its operation is not dependent on any notification under Section 146 of the Act. Any doubts as to whether notice or order may be served in the above GST portals as well is unfounded and hypothetical. Conclusion - The construction that service by making it available on the Common Portal is not a valid mode of service is contrary to the express provisions under GST Act. The impugned orders are set aside - The petitioner shall deposit 25% of the disputed taxes as admitted by the learned counsel for the petitioner and the respondent within a period of four weeks from the date of receipt of a copy of this order - petition disposed off.
The core legal question considered by the Court is whether the service of notice or order under the Goods and Services Tax Act, 2017 (GST Act) by making it available on the Common Portal constitutes valid service. This issue arises in a batch of writ petitions challenging the validity of notices/orders served solely by uploading them on the GST Common Portal without direct communication to the petitioner.
Related issues include:
Issue-wise Detailed Analysis 1. Validity of Service by Uploading on the Common Portal under Section 169 of the GST Act Legal Framework and Precedents: Section 169(1) of the GST Act enumerates six alternative modes of service: (a) personal delivery or tender, (b) registered/speed post or courier, (c) email communication, (d) making available on the Common Portal, (e) publication in a newspaper, and (f) affixture at a conspicuous place if none of the above is practicable. Sub-section (2) deems service to have occurred on the date of tender, publication, or affixture. The Court considered a prior Division Bench judgment under analogous provisions of the Tamil Nadu General Sales Tax Rules, which held that modes of service are alternative and affixture is resorted to only if other modes fail. Court's Interpretation and Reasoning: The Court held that all modes (a) to (f) in Section 169(1) are alternative modes of service, including making available on the Common Portal under clause (d). The Court rejected the petitioner's contention that modes (a) to (c) are exclusive and that (d) to (f) are fallback options. The Court underscored that construing Section 169 otherwise would render the phrase "shall be served by any one of the following methods" redundant, violating the principle against superfluity in legislative interpretation. Application of Law to Facts: Since the notices/orders were uploaded on the Common Portal, service was valid in terms of Section 169(1)(d). The Court found no statutory requirement that service by uploading must be accompanied by physical or postal service. Treatment of Competing Arguments: The petitioner argued that the Common Portal is not a designated computer resource of the taxpayer, that service is complete only on retrieval, and that the portal is primarily for tax filing and not for communication of notices/orders. The Court rejected these contentions, finding the Common Portal to be a designated computer resource for both the Department and the taxpayer, and that the GST Act expressly provides for service by uploading on the portal. Conclusion: Service of notice/order by making it available on the Common Portal is a valid mode of service under Section 169 of the GST Act. 2. Relevance of Section 146 of the GST Act on Notification of the Common Portal Legal Framework: Section 146 empowers the Government to notify a Common Goods and Services Tax Electronic Portal for various functions including registration, payment, return filing, and other prescribed purposes. Court's Interpretation: The Court clarified that Section 146 does not limit or exclude the use of the Common Portal for service of notices/orders. The provision under Section 169(1)(d) stands independently and does not require a specific notification under Section 146 for service of notices/orders. The Common Portal www.gst.gov.in is a notified portal under Section 146 and is the portal used for serving notices/orders. Conclusion: Absence of a specific notification under Section 146 for communication of notices/orders does not invalidate service by uploading on the Common Portal. 3. Applicability of Rule 142 of the GST Rules Contention: The petitioner contended that Rule 142 permits only electronic issuance of a summary of the show cause notice (Form DRC-01) on the portal, implying detailed notices must be served by other means. Court's Reasoning: The Court held that Rule 142 cannot override the express provisions of Section 169 of the GST Act. In case of conflict between the Act and the Rules, the Act prevails. Therefore, detailed notices/orders can be validly served by making them available on the Common Portal. Conclusion: Rule 142 does not restrict the mode of service of detailed notices/orders by uploading on the Common Portal. 4. Effect of the Information Technology Act, 2000, Section 13 on Time and Place of Receipt Legal Framework: Section 13 of the IT Act provides that receipt of an electronic record occurs when it enters the designated computer resource of the addressee, or if sent to a non-designated resource, when retrieved by the addressee. Court's Interpretation: The Court found that the Common Portal is a designated computer resource for the taxpayer, given the unique login ID and password provided. Consequently, receipt occurs when the electronic record enters the Common Portal, i.e., when the notice/order is uploaded. This supports the validity of service by uploading on the portal. Conclusion: Service by uploading on the Common Portal is complete upon entry into the designated computer resource, consistent with Section 13 of the IT Act. 5. Consideration of Hardship and Natural Justice Petitioner's Argument: The petitioner contended that many taxpayers lack computer literacy and are unaware of notices uploaded on the portal, causing hardship and denial of opportunity to participate in proceedings. Court's Response: The Court acknowledged the hardship but held that it cannot override the plain language of the statute. The maxim "dura lex sed lex" (the law is hard, but it is the law) was cited to emphasize that equity cannot supplant clear statutory provisions. The Court noted that the statutory scheme expects taxpayers to access the portal regularly for filing returns. Conclusion: Hardship or lack of awareness does not invalidate service by uploading on the Common Portal. 6. Requirement of Additional Modes of Service (e.g., Registered Post) Petitioner's Submission: Service by uploading should be supplemented by sending notices/orders through registered post or speed post to ensure actual receipt. Court's Finding: The Court rejected this submission, emphasizing that the statute provides alternative modes of service and does not mandate simultaneous service by multiple modes. The Court also noted prior judgments where the Court allowed additional service by registered post only in cases of technical glitches, which is not the present case. Conclusion: Service by uploading on the Common Portal alone is sufficient and valid. 7. Effect of Non-Notification or Non-Receipt of Alerts Issue: The Court considered whether the absence of alerts (SMS or email) notifying taxpayers of uploaded notices/orders affects the validity of service. Court's View: The Court suggested that the Department may issue internal instructions to send alerts for administrative convenience but clarified that such alerts are not a statutory requirement for valid service. The validity of service depends solely on compliance with Section 169 of the GST Act. Conclusion: Lack of alert notifications does not affect the validity of service by uploading. 8. Interim Relief and Directions The Court set aside the impugned orders and directed the petitioner to deposit 25% of the disputed tax amount within a stipulated timeframe. Upon compliance, the impugned order would be treated as a show cause notice, and the petitioner would be given an opportunity to file objections. Failure to comply with the conditions would result in restoration of the impugned order. The Court also directed procedural steps for verification and communication of payments and balances. Significant Holdings "On a plain reading of Section 169 of the Act, it is clear that various modes of service from (a) to (e) are alternate modes of service. This would be evident from the expressions 'shall be served by any one of the following modes'." "The construction that service by making it available on the Common Portal is not a valid mode of service is contrary to the express provisions under GST Act." "The Common Portal is a designated computer resource for both Department as well as taxable person inasmuch as the taxable person is given a unique login ID and password to enable them to have access to the portal." "Service by making it available in the Common Portal is a valid mode of service in terms of Section 169 of the GST Act. Service is complete when it enters the Common Portal." "Hardship faced by the petitioner or a section of taxable persons cannot be a reason to depart from the plain language of Section 169 of the Act." "Section 169 of the GST Act is a standalone independent provision, its operation is not dependent on any notification under Section 146 of the Act." "Rule 142 of the GST Rules cannot override the express provisions of Section 169 of the GST Act." "The absence of alert SMS or email notification does not invalidate service made by uploading the notice/order on the Common Portal." "The impugned orders are set aside subject to payment of 25% of the disputed taxes and opportunity to file objections, failing which the orders shall stand restored."
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