2024 (7) TMI 1241 - HC - GST

Service of notice - whether there was a valid service of the notice and the impugned order as contemplated under the GST Act and the Rules? - denial of discretionary relief under Article 226 of the Constitution on the premise that the appellant has filed the writ petition challenging the order dated 09.01.2019 only on 24.05.2024 i.e., almost 5 years after the impugned order came to be passed. HELD THAT - It is trite law that service of notice or order is essentially a question of fact - It is equally true that valid service of notice or order goes to the root of jurisdiction. This writ appeal stands disposed of granting liberty to the appellant to file an appeal within a period of 4 weeks from the date of receipt of a copy of this judgment.

Summary

Issues:
Challenge to denial of discretionary relief under Article 226 of the Constitution based on delay in filing writ petition, Validity of service of notice and impugned order under GST Act and Rules, Applicability of alternative remedy of appeal under Section 33B(3) of the Act.

Analysis:
1. The writ appeal challenged the denial of discretionary relief under Article 226 due to delay in filing the writ petition. The appellant contended that the impugned order dated 09.01.2019 was challenged on the grounds of lack of communication through any mode, including uploading on the GST portal. The appellant argued that there was a violation of the GST Act and Rules as specific notices were not served, rendering the entire proceeding unlawful and against principles of natural justice.

2. The Respondents, represented by the Government Advocate, argued that the appellant had knowledge of the impugned order since 26.11.2020 when served with a recovery notice referencing the order dated 09.01.2019. The appellant allegedly failed to take appropriate steps to challenge the order promptly, except for a letter claiming a refund under the TNVAT Act. The Respondents asserted that the appellant's delay in challenging the order did not warrant interference with the Single Judge's decision.

3. The High Court deliberated on the crucial issue of valid service of notice and the impugned order as mandated by the GST Act and Rules. Emphasizing that service of notice is a question of fact critical to jurisdiction, the Court cited precedents highlighting the significance of proper service. The Court also noted that mere knowledge of a proceeding does not substitute valid service, as established in legal precedents.

4. In light of the above discussion, the Court refrained from delving into the factual question of service and directed the appellant to pursue the alternative remedy of appeal under Section 33B(3) of the Act. Citing the Supreme Court's ruling in Gita Devi Aggarwal vs. Commissioner of IT, the Court emphasized the importance of exhausting alternative remedies before invoking the special jurisdiction of the High Court under Article 226. The Court disposed of the writ appeal, granting the appellant the liberty to file an appeal within four weeks, subject to conditions including pre-deposit, and instructed the Appellate Authority to first examine the service of notice or order as a preliminary issue before deciding the appeal on merits. No costs were awarded, and related miscellaneous petitions were closed.