Merely uploading SCN under the category "Additional Notices" instead of "Notices" on the GST portal does not constitute sufficient intimation to the taxpayer

[CA Bimal Jain]

The Hon'ble Delhi High Court in the case of Anhad Impex v. Assistant Commissioner [2024 (2) TMI 1070 - DELHI HIGH COURT] held that merely uploading a Show Cause Notice (“SCN”) under the category "Additional Notices" instead of "Notices" on the GST portal does not constitute sufficient intimation to the taxpayer. Consequently, the subsequent demand order passed without giving the Petitioner a proper opportunity to respond to SCN was set aside, and the Court directed that SCN be re-adjudicated after affording a proper opportunity of hearing to the Petitioner.

Facts:

M/s. Anhad Impex (“the Petitioner”), received an Impugned Order dated November 29, 2023, (“the Impugned Order”) passed by the Assistant Commissioner (“the Respondent”), under Section 73 of the Central Goods and Services Tax Act, 2017 (“the CGST Act”), whereby a demand had been created against the Petitioner. The Petitioner contended that the SCN which formed the basis of the Impugned Order, was never received by the Petitioner, and accordingly, the Petitioner could not respond to the same or participate in the adjudication proceedings. The Petitioner further submitted that as per the standard practice, SCNs are normally uploaded by the tax authorities on the GST portal under the heading of 'Notices' which is easily accessible to the taxpayers.

However, in the instant case, the SCN was uploaded on the portal under the category of 'Additional Notices,' which is a separate section on the portal and not easily discoverable or accessible. Due to this, the SCN had missed the attention of the Petitioner, and the Petitioner came to know about the demand only upon receiving the Impugned Order dated November 29, 2023. The Respondent, on the other hand, submitted that in terms of Section 169 of the CGST Act, uploading a notice on the GST portal itself is sufficient compliance with regard to intimation to the taxpayer, and no further separate intimation is required.

Aggrieved by the Impugned Order, the Petitioner filed the writ petition before the Hon'ble High Court of Delhi.

Issue:

Whether the misplacement of the SCN in "Additional Notices" rather than "Notices" warrants the invalidation of the demand order?

Held:

The Hon'ble Delhi High Court, in 2024 (2) TMI 1070 - DELHI HIGH COURT, after considering the submissions of both parties and various judicial precedents on the issue, held as under:

• Observed that, a perusal of the Impugned Order showed that it categorically recorded that the Petitioner had not filed any reply or appeared in person in response to SCN. This indicated that the Petitioner did not have a proper and timely intimation of SCN.
• Noted that, the uploading of the SCN under the category "Additional Notices" instead of "Notices" on the GST portal, which is the standard practice followed by the tax authorities, had resulted in the Petitioner missing out on the intimation of SCN.
• Opined that, merely uploading the SCN on the portal, especially under the “Additional Notices” category, which is not easily accessible or discoverable by the taxpayers, cannot be considered as sufficient intimation or compliance with the principles of natural justice and the provisions of the CGST Act.
• Relied that, in the case of East Coast Constructions & Industries Ltd. v. Asstt. Commissioner (ST) [2023 (10) TMI 146 - MADRAS HIGH COURT] wherein the Hon’ble High Court of Madras has noticed that communications were placed under the heading of "View Notices and Orders" and "View Additional Notices and Orders". The Hon’ble Madras High Court had directed the respondents to address the issue arising out of the posting of information under two separate headings. According to the petitioner, the Menu "View Additional Notices and Orders" were under the heading of "User Services" and not under the heading "View Notices and Orders".
• Noted that, judgment of Murugesan Jayalakshmi v. State Tax Officer - 2024 (2) TMI 715 - MADRAS HIGH COURT, wherein the Madras High Court has noticed that the said issue has been addressed and the portal has been re-designed and both the “View Notices” tab and “View Additional Notices” tab are under one heading.
• Held that, the Impugned Order is set aside. The Petitioner to file the response to SCN and the Respondent shall re-adjudicate the entire SCN afresh, after taking into consideration the Petitioner’s reply, within a period of four weeks after that. The Petitioner shall also be given an opportunity of a personal hearing. Hence, the writ petitioner is disposed of.

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