DRC 07 FOR FY 2018-19 issued on 04.05.2024, Goods and Services Tax - GST

[POOJA AGARWAL]

Dear Experts

The last date to pass the Orders u/s 73 for GST demands for FY 2018-19 was 30.04.2024. In my case the DRC 07 is dated 04.05.2024; however the attached O-i-O is dated 26.04.2024. It is served by email on 05.05.2024 and uploaded on portal after 04.05.20.24.

What should be the date of "issue of order" 26.04.2024 or 04.05.2024 ?

In earlier tax regimes, the relevant date were determined on the basis of service of notice/order; however as per section 75(10) of CGST Act uses the word "issued".

Please Advise

Posts / Replies

[Sadanand Bulbule]

Madam

Is the DRC-07 digitally signed?

Your understanding of Section 75[10] of the CGST Act, 2017 is correct.

[KASTURI SETHI]

 As per judgement of Hon'ble Supreme Court in the case of Kundan Lal Behari Lal - 1974 (9) TMI 2 - SUPREME COURT, the expression, 'issued' includes service also.

[POOJA AGARWAL]

Thank You Sir

DRC 07 is not signed. However the attachment to DRC 07 contains DIN which is valid and verifiable on CBIC website. DIN was generated on 26.04.2024. 

I think the case law suggested by Kasturi Sethi Sir would help a lot, the DRC 07 dated 04.05.2024 is served on 05.05.2024 only.

[Shilpi Jain]

Even if there is a DIN, a non-signed order is not valid. On this ground also the issuance ofthe order can be challenged.

[Amit Agrawal]

One may refer to the discussions under Issue-ID: 119106 bearing subject-line as 'Time barred order'. 

[Amit Agrawal]

W.r.t. Apex Court ruling pointed by Shri Kasturi Sethi Ji in his post at serial No. 2 above, one needs to take note of context of 'relevant provisions' - which were subject matter of dispute there - before courts.

In this regard, one needs to refer to KUNDAN LAL BEHARI LAL VERSUS COMMISSIONER OF WEALTH-TAX, UP., AND ANOTHER, as reported in 1973 (2) TMI 51 - ALLAHABAD HIGH COURT.

As can be seen from above-said HC ruling, said case related to Sub-section (2A) of section 18 of the Wealth-tax Act which empowered the Commissioner to reduce or waive such penalty under certain circumstances. It is worth noting that the word 'serve' was not used anywhere in those provisions but contains only the word 'issue' and Courts interpreted the word 'issue' as 'serve' in context of those provisions. 

Now, coming to Section 73 of the CGST Act, 2017, it contains BOTH words 'serve' as well as 'issue'. For example sub-section (1) uses 'serve', sub-section (2) uses 'issue', sub-section (2) uses both 'issue' & 'serve', sub-section (4) to (6) uses 'serve' and sub-section (7) to (10) uses 'issue'. 

More importantly, Section 74 - most specifically the sub-section (10) & (11) - make clear differentiate between 'issuance of order' & 'serving of the order so issued'. 

Now, question remains how one should interpret the word 'issue' used in sub-section (10) of Section 73 when same clearly means something 'different' from 'serve' when one reads sub-section (10) & (11) of Section 74. In other words, can the word 'issue' can be interpreted differently for Section 73 & 74? 

Another question remains how courts will deal with 'potential mischief by Revenue' about compliance within time-limits prescribed in sub-section (8) of both section 73 & 74 if the words used 'issued' therein is not interpreted as 'served'. 

Interesting time ahead, as legal jurisprudence will take its own time to settle.

But, every tax-payer can (& should, IMHO) raise all these grounds of defense (using above-listed SC & HC ruling as well as line of arguments taken by me during the discussions under Issue-ID: 119106 bearing subject-line as 'Time barred order' where I tried to resolve above-listed apparent conflicts) and challenge all these orders both on merits as well as limitations to 'issue' such orders. 

These are ex facie views of mine and the same should not be construed as professional advice/suggestion.

[Ganeshan Kalyani]

IMO, 04.05.2024 would be the date of receipt of order.

[Padmanathan Kollengode]

I agree with views of Ganesh ji. The date of issue will be 04-05-2024 when it was uploaded in the portal. There is a good chance to get the order quashed as time barred in appeal.

[Padmanathan Kollengode]

In my earlier post, the second line should read as:

"one can take the ground that the date of issue......"

[RITESH BAFNA]

Hello Poojaji,

i am facing a similar challenge. were you able to get any resolution on the matter?

Order-in -Original (O-i-O) dt 29/04/2024.

DRC-07 uploaded on Portal on 04/05/2024.

O-i-O was not emailed and physical Post received after 10 days.

What is the stand taken by you?

Please guide.

Thank  you

[Sadanand Bulbule]

Dear experts

While continuing the discussion, I draw your attention to Section 161 of the CGST Act, wherein the word " within a period of three months from the date of issue of decision or order or notice or certificate or any other document, as the case may be" is used to file an application for rectification of error.

Query:

1] In one case, though the order is issued on 24/04/2024, it is being served on 22/06/2024 via RPAD. If the authority glues to the "date of issue of its order" [24/04/2024], the time to file an application under Section 161 stands expired and authority may take advantage of the word  "the date of issue of order " to reject rectification application on limitation of time.

On the contrary, the actual date of "service of the order" is on 22/06/2024.

Enough replies are there in the forum. Yet suggest sagacious opinion to overcome such adverse situations in the interest of equity. Taxpayer should not go remedy less for no fault of his.

[Padmanathan KV]

Regardless of the context, one may refer to following decision of Hon'ble Supreme Court:

in 1966 (1) TMI 79 - SUPREME COURT wherein it was held:

11. The first question which has been raised before us by Mr. Bishan Narain is that though the respondent came to know about the order of his dismissal for the first time on the 28th May 1951, the said order must be deemed to have taken effect as from the 3rd June 1949 when it was actually passed. The High Court has rejected this contention; but Mr. Bishan Narain contends that the view taken by the High Court is erroneous in law. We are not impressed by Mr. Bishan Narain's argument. It is plain that the mere passing of an order of dismissal would not be effective unless it is published and communicated to the officer concerned. If the appointing authority passed an order of dismissal, but does not communicate it to the officer concerned, theoretically it is possible that unlike in the case of a judicial order pronounced in Court, the authority may change its mind and decide to modify its order. It may be that in some cases, the authority may fell that the ends of justice would be met by demoting the officer concerned rather than dismissing him. An order of dismissal passed by the appropriate authority and kept with itself, cannot be said to take effect unless the officer concerned knows about the said order and it is otherwise communicated to all the parties concerned. If it is held that the mere passing of the order of dismissal has the effect of terminating the services of the officer concerned, various complications may arise.

Similarly in 2012 (7) TMI 383 - SUPREME COURT, it was held that:

"33. The aforesaid observations make it clear that an order passed by an authority cannot be said to take effect unless the same is communicated to the party affected. The order passed by a competent authority or by an appropriate authority and kept with itself, could be changed, modified, cancelled and thus denuding such an order of the characteristics of a final order. Such an uncommunicated order can neither create any rights in favour of a party, nor take away the rights of any affected party, till it is communicated."

In 2010 (8) TMI 932 - SUPREME COURT:

24. Thus, in view of the above, it can be held that if an order is passed but not communicated to the party concerned, it does not create any legal right which can be enforced through the court of law, as it does not become effective till it is communicated.

In context of Income Tax, "Issuance of order" has been interpreted by Kerala High Court in 1997 (2) TMI 76 - KERALA HIGH COURT:

It is not enough if the order is made, signed, and kept in the file, because such order may be liable to change at the hands of the authority who may modify it, or even destroy it, before it is made known, based on subsequent information, thinking or change of opinion. To make the order complete and effective, it should be issued, so as to be beyond the control of the authority concerned, for any possible change or modification therein. By applying the above principle it has to be taken that before the assessment order has become effective by issuing the same by the office of the assessing authority, the assessee has filed its returns.