2023 (12) TMI 156 - HC - GST

Principles of natural justice - Validity of an order which was not signed - Avoidable mistake - Scope of Section 160 of GST - HELD THAT - Section 160 of CGST Act 2017 is not attracted. An unsigned order cannot be covered under any mistake defect or omission therein as used in Section 160. 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 re-assessment 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. Section 169 of CGST Act 2017 is also not attracted. Here the question is of not signing the order and not of its service or mode of service. This writ petition is allowed in part on the ground that the order does not contain the signatures. The impugned order is set aside with direction to the Competent Authority to pass fresh order in accordance with law.

Summary

Issues involved:
The judgment involves the challenge of an impugned order under Section 73(9) of the APGST/CGST Act, 2017 on grounds of the order being unsigned and the discrepancy between the ground stated in the show cause notice and the ground on which the order was passed.

Unsigned Order Issue:
The petitioner contended that the impugned order was unsigned, rendering it unenforceable. The Government Pleader argued that the order was uploaded by the competent authority, relying on Section 160 of the CGST Act, which states that assessments shall not be invalid by reason of any mistake, defect, or omission if they conform to the law. However, the court held that an unsigned order cannot be validated under Section 160 as it goes against the fundamental requirement of a valid order.

Service of Notice Issue:
The Government Pleader also cited Section 169 of the CGST Act regarding the service of notices, but the court determined that this section was not relevant to the case since the issue was the lack of signature on the order, not the method of service. The court referenced a previous case, A. V. Bhanoji Row vs. Assistant Commissioner, where it was held that signatures are essential and cannot be dispensed with under Sections 160 and 169 of the Act.

Decision and Directions:
The court allowed the writ petition on the grounds of the unsigned order, setting aside the impugned order and directing the Competent Authority to issue a fresh order in accordance with the law. The petitioner was given the opportunity to submit additional replies within four weeks. The entire process was to be completed within six weeks, and no costs were awarded.