Proceedings cannot be vitiated if the Order is not uploaded on the common portal

[CA Bimal Jain]

The Hon’ble Calcutta High Court, in the case of MESSERS SREEMA RICE MILL VERSUS UNION OF INDIA & ORS. - 2024 (7) TMI 530 - CALCUTTA HIGH COURT, held that proceedings are not invalid if the Show Cause Notice (“SCN”) is not uploaded on the common portal and served by other means specified in Section 169 of the Central Goods and Services Tax Act, 2017 (“the CGST Act”). However, the adjudication order must be uploaded on the common portal to allow the Assessee to file an appeal. Hence, the writ petition was disposed of.

Facts:

Messers Sreema Rice Mill (“the Petitioner”) were issued a SCN dated September 21, 2023 was issued against the Petitioner for the tax period July 2017 to March 2018 under Section 73 of the CGST Act in Form DRC-01.

Both SCN and the adjudication order dated December 29, 2023 (“the Impugned Order”) issued under Section 73(9) of the CGST Act in Form DRC-07 were not uploaded on the common portal.

Consequently, not uploading the Impugned Order on the portal had denied the statutory power of the Petitioner to file an appeal under Section 107 of the CGST Act before the Appellate Authority.

However, the Respondent stated that the SCN was served through the speed post and the Petitioner had not only responded to the SCN dated October 10, 2023 but had also availed the opportunity of the personal hearing on November 20, 2023.

Hence, aggrieved by the Impugned Order, the Petitioner had filed the writ petition before the Hon’ble High Court.

Issue:

Whether the proceedings can be vitiated if the Order is not uploaded on the common portal?

Held:

The Hon’ble Calcutta High Court in the case of MESSERS SREEMA RICE MILL VERSUS UNION OF INDIA & ORS. - 2024 (7) TMI 530 - CALCUTTA HIGH COURT held as under:

• Observed that, the SCN was served through the speed post, and the Petitioner had responded to the SCN had also availed the opportunity of the personal hearing, which constitutes the substantial compliance of the statutory provisions with respect to the service of the notice and the failure to upload the SCN on the common portal does not invalidate the proceedings.
• Further held that, the Impugned Order passed under Section 73(9) of the CGST Act has been uploaded on the common portal dated May 20, 2024 and the Petitioner should be granted the opportunity to exercise its statutory right to file the appeal. Further, the Respondent should upload the order within 7 days from the order date on the common portal.
• Held that, the Petitioner should file an appeal within three months, from the date of passing the judgement and order or within three months from the date of uploading the order on the common portal whichever is later, by depositing the requisite fees required for maintaining the appeal under Section 107 of the CGST Act and the appeal shall be heard and disposed of on the merits by the Appellate Authority, upon giving an opportunity of personal hearing to the Petitioner. Hence, the writ petition was disposed of.

Our Comments:

Section 169 of the CGST Act governs “Service of notice in certain circumstances”. Section 169(1) of the CGST Act provides that any decision, order, summons, notice or other communication under the CGST Act or the Central Goods and Services Tax Rules, 2017 (“the CGST Rules”) made thereunder shall be served by any one of the following methods, namely:

1. 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
2. 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
3. by sending a communication to his e-mail address provided at the time of registration or as amended from time to time; or
4. by making it available on the common portal; or
5. 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
6. 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.

The Gujarat High Court, in the case of BRITANNIA INDUSTRIES LIMITED VERSUS UNION OF INDIA - 2023 (8) TMI 524 - GUJARAT HIGH COURT was dealing with the question of as to whether the petitioners were “prevented from filing their appeals through the electronic mode merely because the orders were not uploaded, when it is undisputed that the petitioners otherwise were communicated the orders and had received the same manually.” The Court noted that a perusal of Section 107 indicates that any person aggrieved by any decision or order passed under the CGST Act may appeal to the Appellate Authority, as may be prescribed, within three months from the date on which the said decision or order is “communicated” to the person and the same has no correlation with the additional event of date of uploading of the same on the GST portal, even though the same is mandated in terms of rule 142(5) of the CGST Rules. In holding so, the High Court relied on the ratio laid down by the Bombay High Court in the case of M/S. MERITAS HOTELS PVT. LTD. VERSUS THE STATE OF MAHARASHTRA, THE UNION OF INDIA, THE UNION OF INDIA, THE COMMISSIONER OF STATE TAX, THE DEPUTY COMMISSIONER OF SALES TAX, MUMBAI, THE JOINT COMMISSIONER OF SALES TAX (APPEALS -IV) - 2021 (12) TMI 376 - BOMBAY HIGH COURT which inter alia held that “having regard to the express provisions of sub-Section (1) and (4) of Section 107 of the CGST Act, we have no manner of doubt, that for the purpose of limitation, the date of communication of the impugned assessment order is to be regarded as April 20, 2019 viz the date on which the order was sent by email to the petitioner…. we do not find any force in the contention of learned counsel for the petitioner, that the date of uploading of the impugned assessment order on the GSTN portal has to be regarded as the date of communication for the purpose of calculating limitation”. On the other hand, there are other decisions, including in the case of GUJARAT STATE PETRONET LIMITED VERSUS UNION OF INDIA THROUGH SECRETARY - 2020 (9) TMI 427 - GUJARAT HIGH COURT and JOSE JOSEPH, VERSUS ASSISTANT COMMISSIONER OF CENTRAL TAX AND CENTRAL EXCISE, ALAPPUZHA, ADDITIONAL COMMISSIONER (APPEALS) , KOCHI, THE UNION OF INDIA  - 2022 (1) TMI 50 - KERALA HIGH COURT which contrarily hold that such limitation period would commence only from the date of uploading of the order on the GST portal, for the reason that, during the relevant period, appeal could not have been filed other than electronically and unless such order was so uploaded.

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