2024 (7) TMI 530 - HC - GST

Violation of principles of natural justice - neither the show cause cum demand notice issued u/s 73 of WBGST Act nor the adjudication order passed by the proper officer issued u/s 73 (9) was uploaded on the common portal - HELD THAT - It is true, that in absence of the registered tax payer being made aware with regard to the show cause in the manner provided in Rule 142 (1) of the said Rules, the registered tax payer may be denude the opportunity to appropriately respond to the same. But in the instant case, it is noticed that the show cause notice was duly served on the petitioner by speed post. The petitioner had also responded to the same and was also afforded an opportunity of personal hearing. It may be relevant to note that Section 169 of the said Act specifies that the notices are required to be served in the mode and manner as provided for therein. Admittedly, since, the petitioner had been served with the show-cause notice by speed post and the petitioner having responded to the same, it constitutes substantial compliance of statutory provision as regards service of notice. Having regard to the above, the show-cause notice or the order does not get vitiated simply because the same had not been uploaded on the common portal - the petitioner should be permitted to pursue its statutory remedy. If, however, for any reason the said order is yet to be uploaded, the respondents should forthwith upload the same on the portal positively within a period of 7 days from date. Petition disposed off.

Issues involved:
Challenging order under Section 73 (9) of the West Bengal/Central Goods and Services Tax Act, 2017 for the tax period July 2017 to March 2018. Non-uploading of show cause cum demand notice and adjudication order on the common portal. Right to challenge adjudication order by filing an appeal. Compliance with statutory provisions for serving notices.

Analysis:

Issue 1: Challenging the order under Section 73 (9) of the Act
The petitioner filed a writ petition challenging the order dated 29th December, 2023, passed under Section 73 (9) of the West Bengal/Central Goods and Services Tax Act, 2017 for the tax period July 2017 to March 2018.

Issue 2: Non-uploading of Notices on the Common Portal
The petitioner contended that the show cause cum demand notice and the adjudication order were not uploaded on the common portal, which is required as per the statutory provisions. The absence of the show-cause notice on the portal was highlighted, leading to a request to set aside both the show cause notice and the adjudication order.

Issue 3: Right to Challenge by Filing an Appeal
The petitioner argued that the failure to upload the adjudication order on the common portal deprived them of the right to challenge the order by filing an appeal. Emphasis was placed on the statutory right to appeal, which should not be compromised due to procedural lapses.

Issue 4: Compliance with Statutory Notice Serving Provisions
The respondents justified the non-uploading of the show cause notice on the common portal by stating that it was duly served on the petitioner through speed post, and the petitioner had responded to it. They argued that the failure to upload the notice did not invalidate the proceedings since the petitioner was made aware of the notice and had an opportunity to respond.

Judgment and Direction
The Hon'ble Court acknowledged the importance of complying with statutory provisions regarding the uploading of notices on the common portal. However, it noted that substantial compliance was achieved as the petitioner was served the notice through speed post and had responded to it. The Court directed that if the order dated 29th December, 2023, was not uploaded on the common portal, it should be done within seven days. The petitioner was granted the right to pursue its statutory remedy by filing an appeal within three months of the judgment or the date of uploading the order on the portal, whichever is later.

Conclusion
The writ petition was disposed of without costs, allowing the petitioner to appeal the order if uploaded on the common portal within the specified time frame. The Court clarified that it did not delve into the merits of the case, leaving it to the appellate authority to decide all points raised, including any issues of limitation.

This detailed analysis covers the issues raised in the judgment, providing a comprehensive understanding of the legal proceedings and the Court's decision.

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