Notice/ Order shall be mandatorily be served through post or electronic mode

[Bimal jain]

The Hon’ble Madras High Court in the case of UDUMALPET SARVODAYA SANGHAM. VERSUS THE AUTHORITY, UNDER SHOP AND ESTABLISHMENT ACT/ DEPUTY COMMISSIONER OF LABOUR, COIMBATORE.  - 2025 (1) TMI 517 - MADRAS HIGH COURT allows the writ petition where it was held that Section 169 of the Central Goods and Services Tax Act, 2017 (“the CGST Act”) mandates a notice to be served in person or by registered post or to the registered e-mail ID alternatively and on a failure or impracticability of adopting any of the aforesaid modes, then the State can, in addition, make a publication of such notices/ summons/ orders in the portal/ newspaper through the concerned officials.

Facts:

Udamalpet Sarvodaya Sangham & Ors. (“the Petitioners”) were not well aware about the portal of the Department and due unawareness of the information technology. They had relied upon the practitioners for filing their returns in the portal of the Department. The practitioners uploaded their phone numbers and e-mail IDs for receipt of alerts and that in most of the cases and did not inform the Petitioners either the updation on the portal or the receipt of the e-mails which have kept the Petitioners in dark.

The Authority (“the Respondents”) in each of the cases had uploaded only the notices/order on the web portal and not by other modes prescribed under Section 169 of the CGST Act.

The Petitioners contended that the provisions under Section 169 (1) (a) to (f) are disjunctive, they should be read conjunctively, failing which, the basic principles of natural justice would be violated. They would all submit that Clauses (a) to (c) of sub section (1) of Section 169 should be read as alternative.

Hence, aggrieved by the circumstances, the Petitioners filed the present writ petition.

Issue:

Whether Notice/ Order shall be mandatorily be served through post or electronic mode?

Held:

The Hon’ble Madras High Court in UDUMALPET SARVODAYA SANGHAM. VERSUS THE AUTHORITY, UNDER SHOP AND ESTABLISHMENT ACT/ DEPUTY COMMISSIONER OF LABOUR, COIMBATORE.  - 2025 (1) TMI 517 - MADRAS HIGH COURT held as under:

• Observed that, Rule 52(d) of the Central Goods and Services Tax Rules, 2017 (“the CGST Rules”) and Section 169(1)(f) of the CGST Act are pari materia. Rule 52 of the CGST Rules had been dealt with by a Division Bench of the Hon’ble Madras High Court as early as in the year 1972 and had held that Clauses (a), (b) & (c) are alternative and that if any of the aforesaid modes is not practicable then Clause (d) ought to have been followed.
• Noted that, an application of the said Division Bench of Section 169(1) of the CGST Act would mean that Clauses (a) to (c) would be alternative and if it was not practicable, then Clauses (d) to (f) would have to be followed. Only interpreting Section 169 of the CGST Act in such a manner would effectively comply with the principles of natural justice and also condition stipulated by Section 169(3) of the CGST Act which mandates that when such decisions, orders, summons, notices or any communication sent by the Registered Post or speed post, it shall be deemed to have been received by the assessees, unless the contrary is proved. A conjoined reading of Sub-Section (1)(2) & (3) of Section 169 of the CGST Act would amply make it clear that the State is obliged to comply with the Clauses (a) to (c) alternatively and thereafter, comply with Clauses (d) to (f). Further, even though Clause (f) has also been proceeded with the word 'or' indicating it to be disjunctive / an alternative mode of services, a reading of the Clause (f) would indicate that Clause (f) could be resorted to by the State, if any of the Clauses preceding it, was not practicable. Here also, Clause (f) makes it imperative that such affixture shall be in a conspicuous place and the last known business or residence of the assessee. Therefore, the object of Section 169 of the CGST Act is for strict observance of the principles of natural justice.
• Opined that, the Rules are creature of a Statute and the Rules cannot circumscribe the mode that had been provided under the Statute. When the Statute had also mandated issuance of notice in person/ registered post/ e-mail, etc., the Rules cannot be limited to only serving it through electronic modes. Therefore, the contention that the Rules will prevail over the Statute cannot be accepted. When the modes of service have been prescribed, such services should be effectively done as prescribed.
• Held that, that Section 169 of the CGST Act mandates a notice in person or by registered post or to the registered e-mail ID alternatively and on a failure or impracticability of adopting any of the aforesaid modes, then the State can, in addition, make a publication of such notices/ summons/ orders in the portal/ newspaper through the concerned officials. The Writ Petitions are allowed and setting aside the impugned assessment orders.

Our Comments:

Section 169 of the CGST Act governs “Service of notice in certain circumstances”. Section 169(1) of the CGST states that 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:-

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.

Further, Section 169(2) of the CGST Act states that 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).

Lastly, Section 169(3) of the CGST Act states that 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.

In pari materia case of M/S. V.S.R. AGRO PRODUCTS, REPRESENTED BY ITS PARTNER, SRI. M.C. VIJAYAN VERSUS THE ASSISTANT COMMISSIONER (ST) , KRISHNAGIRI. - 2024 (7) TMI 1036 - MADRAS HIGH COURT before the Hon’ble Madras High Court where show cause notice was only uploaded on the GST portal without any communication, order was set aside and reconsideration was directed with the opportunity for the Assessee to respond and be heard.

 (Author can be reached at [email protected])