Orders issued under Section 73 of the CGST/SGST Acts must carry the digital or manual signature

[Bimal jain]

The Hon’ble Kerela High Court in the case of M/S. FORTUNE SERVICE, MR. SIVAPRASANTH PARAMESWARAN, PALAKKANDY STEELS PVT. LTD., HOMESTEAD PROJECTS & DEVELOPERS PVT. LTD., KUMARAKOM LAKE RESORTS, M/S. NEW CLASSIC DISTRIBUTORS, M/S. MUSLIM PRINTING AND PUBLISHING COMPANY LIMITED, M/S. ANSARI TRADERS, VERSUS UNION OF INDIA, CENTRAL BOARD OF INDIRECT TAXES AND CUSTOMS, STATE OF KERALA, THE STATE TAX OFFICER KOZHIKODE, THE DEPUTY COMMISSIONER, ARREAR RECOVERY, KOZHIKODE, THE GOODS AND SERVICES TAX NETWORK, THE ASSISTANT COMMISSIONER THIRUVANANTHAPURAM, STATE TAX OFFICER THIRUVANANTHAPURAM, JOINT COMMISSIONER, TAXPAYER SERVICES, COMMERCIAL TAXES THRISSUR., THE SENIOR ENFORCEMENT OFFICER, CHALAKKUDY - 2024 (12) TMI 1512 - KERALA HIGH COURT allowed the writ petition, where the issue was whether orders issued under Section 73 of the Central Goods and Service Tax Act, 2017 (“the CGST Act”) / the state Goods and Service Tax Acts, 2017 (“the SGST Act”) must carry the digital or manual signature of the officer passing the order in order to treat the order to be a valid order for the purposes of the CGST/SGST Acts.

The Hon’ble Kerela High Court relied on the case of M/S. SILVER OAK VILLAS LLP VERSUS THE ASSISTANT COMMISSIONER (ST) , THE ADDITIONAL COMMISSIONER OF CENTRAL TAX, STATE OF TELANGANA, UNION OF INDIA, CENTRAL BOARD OF INDIRECT TAXES AND CUSTOMS - 2024 (4) TMI 367 - TELANGANA HIGH COURT which had further relied on decision of the High Court for the State of Andhra Pradesh M/S. SRK ENTERPRISES, VERSUS ASSISTANT COMMISSIONER (ST) , BHEEMILI CIRCLE, VISAKHAPATNAM - 2023 (12) TMI 156 - ANDHRA PRADESH HIGH COURT, wherein the Hon’ble Division Bench held that an unsigned order cannot be covered under ―any mistake, defect or omission therein as used in Section 160 of the CGST Act. The said expression refers to any mistake, defect or omission in an order with respect to assessment, re-assessment; adjudication etc and which shall not be invalid or deemed to be invalid by such reason, if in substance and effect the assessment, reassessment etc is in conformity with the requirements of the Act or any existing law. These would not cover omission to sign the order. Unsigned order is no order in the eyes of law. Merely uploading of the unsigned order, may be by the Authority competent to pass the order, would, not cure the defect which goes to the very root of the matter i.e. validity of the order. The Division Bench further relied on the case of AV BHANOJI ROW VERSUS ASSISTANT COMMISSIONER ST VISAKHAPATNAM - 2023 (2) TMI 1224 - ANDHRA PRADESH HIGH COURT where a Co-ordinate Bench of this Court has held that the signatures cannot be dispensed with and the provisions of Sections 160 and 169 of CGST Act would not come to the rescue.

The Hon’ble Kerela High Court allowed the writ petition by quashing Impugned Orders and making it clear that it will be open to the competent Authorities in all these cases to upload fresh orders by affixing digital signatures or by serving a copy of the order after affixing manual signature. Since it is possible that in several of the cases, there may have been a change of officer, who passed the original order, fresh orders shall be passed by the competent officer presently in office, after affording a fresh opportunity of hearing to the petitioners in these cases. It is made clear that none of the orders directed to be issued in the terms of this judgment shall be questioned on the ground that they are issued beyond the period of limitation and it will be deemed for all purposes that the fresh orders will relate back to the date on which the original orders (which have been set aside) have been issued.

Our Comments:

Section 160 of the CGST Act governs “Assessment proceedings, etc., not to be invalid on certain grounds”. It states that no assessment, re-assessment, adjudication, review, revision, appeal, rectification, notice, summons or other proceedings done, accepted, made, issued, initiated, or purported to have been done, accepted, made, issued, initiated in pursuance of any of the provisions of the CGST Act shall be invalid or deemed to be invalid merely by reason of any mistake, defect or omission therein, if such assessment, re-assessment, adjudication, review, revision, appeal, rectification, notice, summons or other proceedings are in substance and effect in conformity with or according to the intents, purposes and requirements of this Act or any existing law. Further, the service of any notice, order or communication shall not be called in question, if the notice, order or communication, as the case may be, has already been acted upon by the person to whom it is issued or where such service has not been called in question at or in the earlier proceedings commenced, continued or finalised pursuant to such notice, order or communication.

In pari materia case of M/S. SRK ENTERPRISES, VERSUS ASSISTANT COMMISSIONER (ST) , BHEEMILI CIRCLE, VISAKHAPATNAM  - 2023 (12) TMI 156 - ANDHRA PRADESH HIGH COURT held that unsigned order is no order in the eyes of law. Merely uploading of the unsigned order, may be by the Authority competent to pass the order, would, not cure the defect which goes to the very root of the matter i.e. validity of the order.

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