9911796707
TMI Blog2024 (7) TMI 918X X X X Extracts X X X X X X X X Extracts X X X X ..... TGST Act and Rules 2017. The show cause notice as also the impugned order both would not be sustainable and the same deserves to be and is accordingly set aside/quashed. However, the right of the respondents would stand reserved to take appropriate steps strictly in accordance with law governing the field. This Writ Petition stands allowed. - THE HONOURABLE SRI JUSTICE P.SAM KOSHY AND THE HON'BLE JUSTICE SAMBASIVA RAO NAIDU FOR THE PETITIONER : M NAGA DEEPAK FOR THE RESPONDENT : DOMINIC FERNANDES SENIOR STANDING COUNSEL FOR CBIC ORDER ( Per Hon ble Sri Justice P. SAM KOSHY ) Heard Mr.Venkata Prasad P. learned counsel representing Mr.M.Naga Deepak, learned counsel for the petitioner, Mr.Swaroop Oorilla, learned Special Government Plea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2017 and violative of articles 14 191g 21 and 265 of the Constitution of India and/or pass. 3. The primary contention of the learned counsel for the petitioner assailing the show cause as also the impugned order was that the show cause notice as also the assessment order have not been signed by the 1st respondent either digitally or physically as is otherwise required under Rule 26 of the Central Goods and Services Taxes Rules (for short CGST ). 4. The learned counsel for the Department submits that he has not received any satisfactory instructions from the Department as to why the show cause notice as also the order of assessment have not been signed by the 1st respondent while issuing the same either digitally or physically. 5. It is at t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pon which reliance has been placed by learned counsel for the petitioner (Ex.P6), a Co-ordinate Bench of this Court has held that the signatures cannot be dispensed with and the provisions of Sections 160 and 169 of CGST Act would not come to the rescue. 10. Paragraph 6 of A. V. Bhanoji Row (supra) is reproduced as under:- ― 6. A reading of Section 160 of the Act makes it very much clear and candid that the safeguards contained therein cannot be made applicable for the contingency in the present case. Section 169 of the Act, which deals with the service of notice, enables the department to make available any decision, order, Summons, Notice or other communication in the common portal. In the guise of the same, the signatures cannot be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... available any decision, order, 4 Summons, Notice or other communication in the common portal. In the guise of the same, the signatures cannot be dispensed with. In the considered opinion of this court, the aforesaid provisions of law would not come to the rescue of the respondent herein, for justifying the impugned action. 7. For the aforesaid reasons, this Writ Petition is allowed, setting aside the impugned order of the 1st Respondent, dated 23-11-2022 and the DRC-07 notice, dated 23-11-2022 for the tax period 2017-18,2018-19 and 2019-20, as well as the show cause notice dated 22-10-2022 and DRC-01 notice, dated 22-10-2022 issued by the 1st Respondent and uploaded in the GST common portal. However, this order will not preclude the respond ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 6 of the CGST Rules. Hence, the time limit for filing the appeal would begin only upon digitally signed order being made available. 4. Averments in paragraph Nos.6, 7 and 8 of the petition reads as under: 6. With respect to the issue of limitation, the order which is appealed against, which is the Order for Cancellation of Registration dated 14 November 2019, is not signed by the Respondent No.4 who has issued the order. The said order is merely uploaded on the GST Portal without any signature. The signature was affixed for the first time only on 19 May 2021 when Petitioner had to get an attestation from Respondent No.4 for the purposes of filing appeal. This attestation was required precisely because the Order for Cancellation of Registrat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... put by the issuing authority. Conveniently, respondent stated that petitioner cannot take stand of not receiving the signed copy because the unsigned 4/4 908-WP-9331-2022.doc order was admittedly received by petitioner electronically. However, if this stand of respondent has to be accepted, then the Rules which prescribe specifically that digital signature has to be put will be rendered redundant. In our view, unless digital signature is put by the issuing authority that order will have no effect in the eyes of law. 8. Yet another matter came up before the High Court of Delhi in W.P.No.2872 of 2023, which stood decided on 03.02.2023, wherein in paragraph Nos.14 to 17 the High Court of Delhi has held as under : Concededly, the impugned order ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
