SERVICE OF NOTICE IN GST

[Dr. Sanjiv Agarwal]

Service of Notice (Section 169)

(1) Any decision, order, summons, notice or other communication under this Act or the rules made thereunder shall be served by any one of the following methods, namely:

(a) by giving or tendering it directly or by a messenger including a courier to the addressee or the taxable person or to his manager or authorised representative or an advocate or a tax practitioner holding authority to appear in the proceedings on behalf of the taxable person or to a person regularly employed by him in connection with the business, or to any adult member of family residing with the taxable person; or

(b) by registered post or speed post or courier with acknowledgement due, to the person for whom it is intended or his authorised representative, if any, at his last known place of business or residence; or

(c) by sending a communication to his e-mail address provided at the time of registration or as amended from time to time; or

(d) by making it available on the common portal; or

(e) by publication in a newspaper circulating in the locality in which the taxable person or the person to whom it is issued is last known to have resided, carried on business or personally worked for gain; or

(f) if none of the modes aforesaid is practicable, by affixing it in some conspicuous place at his last known place of business or residence and if such mode is not practicable for any reason, then by affixing a copy thereof on the notice board of the office of the concerned officer or authority who or which passed such decision or order or issued such summons or notice.

(2) Every decision, order, summons, notice or any communication shall be deemed to have been served on the date on which it is tendered or published or a copy thereof is affixed in the manner provided in sub-section (1).

(3) When such decision, order, summons, notice or any communication is sent by registered post or speed post, it shall be deemed to have been received by the addressee at the expiry of the period normally taken by such post in transit unless the contrary is proved.

Section 169 of CGST Act, 2017, provides for the modes of service that can be considered valid under the GST law

Subject of communication can be of any decision, order, summons, notice or other communication under the Act or the rules.

Section 169 of CGST Act, 2017, deals with service of order, notice etc and is similar to provisions in Central Excise Act, 1944 (Section 37C). However, in GST law, the concept of deemed service has also been brought in.

Modes of Communication

The above documents / notices / orders etc. can be served on the assessee in the following modes:

• Physical Delivery
• Registered post /speed post or courier with acknowledgement due
• Electronic means
• Media
• Other modes such as by affixing at some conspicuous place at last known place of business or residence

Various methods of service of any decision, notice, order, summon or any other communication under the Act or Rules have been provided in Section 169 of CGST Act, 2017, are as follows:

(a)   By giving or tendering it directly or through a messenger or courier to the addressee or the taxable person or to his manager or to person duly authorized or an advocate or a tax practitioner holding authority to appear in the proceeding on behalf of the taxpayer or to a person regularly employed by him in connection with the business, or to any adult member of family residing with the taxpayer, or

(b)   By registered post or speed post or courier with acknowledgement due, to the person for whom it is intended or his authorised agent, if any at his last known place of business or residence, or

(c)   By sending a communication to his e-mail address, provided at the time of registration or as amended from time to time or

(d)   By making it available on common portal, or

(e)   By publication in a newspaper circulating in the locality of taxpayer or the person to whom it is issued is last known to have resided, carried on business or personally worked for gain, or

(f)    If none of the above is practicable, by affixing it in some conspicuous place on his last known place of business or residence address, or

(g)   If such affixing is also not practicable, by affixing a copy thereof on the notice board of the officer who has passed such decision or order or issued such summons or notice.

Service

Every decision, order, summon, notice or any communication shall be deemed to have been served on the date on which it is tendered or published or a copy thereof is affixed in the manner as above.

Service by post

As per Section 169(3) of the CGST Act, 2017, when such communication is sent by registered post or speed post, it shall be deemed to have been received by the addressee at the expiry of the period normally taken by a registered/speed post letter in transit unless contrary is proved.

Relevant judicial pronouncements on service

• In New Grace Automech Products Pvt. Ltd. v. State Tax Officer 2023 (1) TMI 288 - MADRAS HIGH COURT, it was held that methods of service of order as specified in Section 169 are not conjunctive but provide alternate methods of service. In the instant case, the order was uploaded on the GST portal on the same day and therefore, Section 169 was complied with.

• In Pandidorai Sethupathi Raja v. Superintendent of Central Tax 2022 (12) TMI 1028 - MADRAS HIGH COURT, where the order was uploaded on the common portal, it was held that making an order available on common portal would tantamount to 'tendering' of that order to recipient. There was no conscious intention on part of legislature to exclude 'uploading' as one of modes of service. Necessity for an alert by way of SMS/email that notice/order was uploaded on portal stood obviated as it was obligation of taxpayers to file returns monthly resulting in accessing portal at least once a month. Uploading of orders on common portal constitutes proper mode of service.

• In A.S. Jewellers v. State Tax Officer 2022 (1) TMI 49 - KERALA HIGH COURT, the order was sent by registered post and acknowledgement was received. It was held that such order was to be deemed to have been tendered to assessee in view of provisions of sections 169(1)(b) and deeming fiction created under Section 169(2) ibid. Assessee's contention that said order was not received, could not be accepted. However, keeping in view that said order might have been misplaced by them and statutory right to pursue an appeal could not be curtailed solely on account of non-receipt or loss of such order, it was incumbent upon department to issue certified copy of order to them to pursue statutory right of appeal.

• In Railsys Engineers Pvt. Ltd. v. Additional Commissioner of Central Goods and Services Tax, Appeals-II 2022 (7) TMI 1230 - DELHI HIGH COURT, the signatures of the officer were not there on the SCN on the ground that the order was to be uploaded on the common portal and hence signatures were not appended by the officer relying upon Section 169(1)(d) of CGST Act, 2017. The court observed that even a plain reading of the provision does not suggest that the orders need not be signed. At the least, the respondents/revenue should have appended digital signatures on the SCN and the above-mentioned order, as it has grave implications for the assessee. The order was therefore, set aside.

• In Pushpam Reality v. State Tax Officer 2022 (3) TMI 86 - MADRAS HIGH COURT, it was observed that GST Act was implemented in the year 2017 with effect from 01.07.2017. The web portal maintained by GST has faced problems on several occasions and steps were taken for correcting the technical glitches. Even as on date, there are problems arising out of intercommunication between the State GST and Central GST and the web portal which has to be resolved.

The respondents can therefore continue the service of notice through registered post or speed post or courier with acknowledgment to the petitioners at their last known place of business or residence and upload the same in the web portal. Till all problems are resolved on the technical side, the authority may simultaneously serve the notice of assessment and communications under the Act and Rules both through registered post or speed post or courier with acknowledgment as is contemplated Section 169(1)(b) of the Act and through web portal.

Once all technical problems are resolved, the practice of sending physical copy through registered post or speed post or courier with acknowledgment may be dispensed with.

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