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TMI BlogVALIDITY OF GST NOTICES/ORDERS WITHOUT DIGITAL SIGNATUREX X X X Extracts X X X X X X X X Extracts X X X X ..... VALIDITY OF GST NOTICES/ORDERS WITHOUT DIGITAL SIGNATURE - By: - Saradha Hariharan - Goods and Services Tax - GST - Dated:- 30-9-2024 - Recently GSTN has issued advisory on 25 th September 2024 on the Validity of documents issued by the tax officers on the common portal. In this context, this article is set to examine the position of law, relevant provisions rules and various court decisions on this matter, to throw more light on this matter comprehensively. A. Crux of GSTN Advisory dated 25 th September 2024: With respect to SCN/Orders without the Digital signatures on the pdf document downloaded from the common portal, GSTN mentioned that such documents are generated on the common portal from the login of the officer, who logs in through ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Digital Signatures. It is also mentioned that the validity in question vis- -vis who and for what purpose these documents have been issued can also be verified by the taxpayer pre-login as well as after login from the GST common portal by navigating to Verify RFN under User Services . Full text of the advisory is accessible in GST portal: https://www.gst.gov.in/newsandupdates/read/524 https://tutorial.gst.gov.in/downloads/news/advisory_for_dsc_issues_25_09_2024_pdf.pdf B. Section 169: Service of notice in certain circumstances.- It is pertinent to note that Section 169 of the CGST Act permits any one of the several modes to serve any decision, order, summons, notice or other communication, namely (a) giving or tendering it directly or by a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... messenger including courier or (b) by registered post or speed post or courier with acknowledgement due (c) e-mail to registered address; (d) by making it available on the common portal; or (e) by publication in a newspaper circulating in the locality (f) if none of the modes aforesaid is practicable, by affixing it in some conspicuous place at his last known place of business or residence and if such mode is not practicable for any reason, then by affixing a copy thereof on the notice board of the office of the concerned officer or authority who or which passed such decision or order or issued such summons or notice. Such be the case, this examination is restricted only in the context of communication through common portal and not majorly ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... applicable for other modes. C . Rule 26 of CGST Rules 2017 Method of Authentication: (3) All notices, certificates and orders under the provisions of this Chapter shall be issued electronically by the proper officer or any other officer authorised to issue such notices or certificates or orders, through digital signature certificate or through E-signature as specified under the provisions of the Information Technology Act, 2000 (21 of 2000) or verified by any other mode of signature or verification as notified by the Board in this behalf. Thus, it is explicitly clear that electronic communications are valid only when authenticated through DSC / e-signature. Before set to examine the GSTN advisory, let us also glance through decisions from ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... various High Courts in this regard. D. Various case decisions from High Courts in India: 1. M/S. SILVER OAK VILLAS LLP VERSUS THE ASSISTANT COMMISSIONER (ST) , THE ADDITIONAL COMMISSIONER OF CENTRAL TAX, STATE OF TELANGANA, UNION OF INDIA, CENTRAL BOARD OF INDIRECT TAXES AND CUSTOMS [2024 (4) TMI 367 - TELANGANA HIGH COURT] Validity Of show cause notice and unsigned assessment order - Unsinged order either digitally or physically as is otherwise required under Rule 26 of the Central Goods and Services Taxes Rules ( CGST ) - HELD THAT:- We are of the considered opinion that the impugned order in the instant case also since it an un-signed document which lose its efficacy in the light of requirement of Rule 26(3) of the CGST Rules 2017 and al ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... so under the 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. No.- WRIT PETITION No. 6671 OF 2024 Dated.- March 14, 2024 2. M/S. SRK ENTERPRISES, VERSUS ASSISTANT COMMISSIONER (ST) , BHEEMILI CIRCLE, VISAKHAPATNAM [2023 (12) TMI 156 - ANDHRA PRADESH HIGH COURT ] ( Landmark Case Decisions) 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 orde ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r 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 als ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o 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. WRIT PETITION No. 29397 OF 2023 Dated: - 10-11-2023 3. AV BHANOJI ROW VERSUS ASSISTANT COMMISSIONER ST VISAKHAPATNAM [2023 (2) TMI 1224 - ANDHRA PRADESH HIGH COURT] Validity of SCN - impugned proceedings do not contain the signature of the officers concerned - HELD THAT:- 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 conting ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ency 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 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. 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 Responden ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t and uploaded in the GST common portal. No.- WRIT PETITION No.2830 of 2023 Dated.- February 14, 2023 4. RAILSYS ENGINEERS PRIVATE LIMITED ANR. VERSUS THE ADDITIONAL COMMISSIONER OF CENTRAL GOODS AND SERVICES TAX (APPEALS-II) ANR. [2022 (7) TMI 1230 - DELHI HIGH COURT] Condonation of delay in filing appeal - extension of condonable period - Validity of SCN and order cancelling the petitioners registration - case is that Order-in-Appeal passed by respondent no.1 is founded on the ground that the appeal was instituted beyond the prescribed period of limitation - HELD THAT:- Concededly, the period of limitation prescribed for filing the appeal under Section 107 of the CGST Act, 2017 is three months, which is amenable to extension by the period ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of one month by the Commissioner on sufficient cause being shown - The prescribed period of limitation would thus, end on 24.02.2020, with a one-month leeway available to the Commissioner to extend the period of limitation. The condonable period of one month, in this instance, would end on 24.03.2020. The extension of limitation applied even to the condonable period, and not just to the prescribed period of limitation under Section 107 of the Act - Even a plain reading of the provision does not suggest that the orders need not be signed . At the least, the respondents/revenue should have appended digital signatures on the SCN and the above-mentioned order, as it has grave implications for the assessee. The appeal preferred by the petitione ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rs is restored - Petition disposed off. No.- W.P.(C) 4712/2022 Dated.- July 21, 2022 5. M/S. MANCHERIAL CEMENT COMPANY PRIVATE LIMITED VERSUS THE DEPUTY COMMISSIONER [2024 (4) TMI 412 - TELANGANA HIGH COURT] Maintainability of order - respondents have not put their signatures nor there exists any digital signature - statutory mandate engrained in Rule 26(3) of the Central Board of Service Tax Rule 2017 not followed - HELD THAT:- By placing reliance on the judgments of various High Courts in M/S. SRK ENTERPRISES, VERSUS ASSISTANT COMMISSIONER (ST) , BHEEMILI CIRCLE, VISAKHAPATNAM - 2023 (12) TMI 156 - ANDHRA PRADESH HIGH COURT , Ramani Suchit Malushte v. Union of India [2022 (9) TMI 1263 - BOMBAY HIGH COURT], RAILSYS ENGINEERS PRIVATE LIMITE ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... D ANR. VERSUS THE ADDITIONAL COMMISSIONER OF CENTRAL GOODS AND SERVICES TAX (APPEALS-II) ANR. [2022 (7) TMI 1230 - DELHI HIGH COURT] and another judgment of this Court in M/S. SILVER OAK VILLAS LLP VERSUS THE ASSISTANT COMMISSIONER (ST) , THE ADDITIONAL COMMISSIONER OF CENTRAL TAX, STATE OF TELANGANA, UNION OF INDIA, CENTRAL BOARD OF INDIRECT TAXES AND CUSTOMS [2024 (4) TMI 367 - TELANGANA HIGH COURT] , learned counsel for the petitioner submits that the singular point involved is no more res integra. Since the order is not pregnant with the signature of the competent authority, the order cannot sustain judicial scrutiny. Other side did not dispute the factum of non-availability of signature on the notice and order. In this view of the matt ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er, notices dated 10.02.2022, 12.02.2021 and order dated 15.11.2023 are set aside. Liberty is reserved to the department to proceed against the petitioner in accordance with law. The writ petition is disposed off. No.- Writ Petition No. 8272 of 2024 Dated.- April 1, 2024 6. M/S. HIGH NOON CONSULTING PRIVATE LIMITED VERSUS THE DEPUTY COMMISSIONER OF STATE TAX - 2024 (7) TMI 918 - TELANGANA HIGH COURT Validity of SCN and assessment order - not signed by the 1st respondent while issuing the same either digitally or physically - SCN 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 - HELD THAT:- The impugned ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... order in the instant case also since it an un-signed document which lose its efficacy in the light of requirement of Rule 26(3) of the CGST Rules 2017 and also under the 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. No.- WRIT PETITION No. 17720 OF 2024 Dated.- July 9, 2024 E . Validity of the GSTN Advisory: It is pertinent to note that the advisory does not contemplate a view that digital signature itself is not a requirement or that the notice / o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rder is valid without DSC. It merely conveys a message that such document are being generated in the common portal from the login of the officers who logs in through Digital signature and hence such uploading itself is possible only upon digital signature being affixed by the tax officer and thus GSTN attempts to establish a meaning that a mere uploading of any document communication by the officer in the portal is a due compliance with Rule 26(3) , even though the attached pdf document (notice / order) does not carry the DSC authentication. Though GSTN s advisory is limited only to the communications through GST portal and not for other modes of communications permitted u/s 169 , from the above case decisions, it is quite clear that courts ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... have unambiguously held the notices / orders to be invalid when they are not appropriately authenticated with digital signature as per Rule 26(3), even if they are uploaded in the common portal. Apart from the fact that GSTN advisory lacks legal validity to be understood as a mandated law, it is also surprising that it is contrary to the court decisions. The question is not on whether digital signature is mandatory to authenticate a document, rather what construes a valid authentication digitally. With such advisory contrary to the court decision, the acceptability of such interpretation framed by GSTN can only be tested in the light of law by the courts on similar matters post this advisory. As GSTN functions merely as a facilitator of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e common portal and is not explicitly referenced in the GST act, it is high time that GSTN should discontinue such practice of issuing advisory attempting to mandate procedural compliances on taxpayers like ITC reversal / reclaim statement, RCM ITC statement, IMS, etc. which extends beyond the ambit of what is laid in the Act and the Rules and also framing interpretations as against the court of law. GSTN's role should remain within the framework of facilitation, rather than creating additional compliance obligations. - Scholarly articles for knowledge sharing authors experts professionals Tax Management India - taxmanagementindia - taxmanagement - taxmanagementindia.com - TMI - TaxTMI - TMITax ..... X X X X Extracts X X X X X X X X Extracts X X X X
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