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TMI Blog2025 (1) TMI 1021X X X X Extracts X X X X X X X X Extracts X X X X ..... have to be complied with independently before compliance of Section 52 (d). The Division Bench had held that the authority would have to comply with any of the three modes under (a), (b) & (c) of Rule 52 and if found such service was not effective, then the Clause (d) of Rule 52 would have to be complied. >A similar view had been taken by a subsequent Division Bench in a judgment in the case of Singaravelar Spinning Mills (P) Ltd., Vs State of Tamil Nadu and Another [2010 (12) TMI 1102 - MADRAS HIGH COURT]. The Division Bench in the said judgment had also taken note of the earlier Division Bench indicated supra, wherein, the Division Bench had held that the mode of service referred to under Clause (a) to (c) are only alternative and not cumulative and that any one of the modes have to be exhausted before proceeding under Rule 52 (d). >A conjoined reading of Sub-Section (1)(2) & (3) of Section 169 would amply make it clear that the State is obliged to comply with the Clauses (a) to (c) alternatively and thereafter, comply with Clauses (d) to (f). Further, even though Clause (f) has also been proceeded with the word 'or' indicating it to be disjunctive / an alternative ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ned counsels for the petitioners that the respondents in each of the cases had uploaded only the notices/ orders in the web portal and not by any other modes as prescribed under Section 169 of the Act. >3. It is their case that most of the petitioners are not well aware about the portal of the Department and due unawareness of the information technology, they had relied upon the practitioners for filing their returns in the portal of the Department. It is also their case that the practitioners have uploaded their phone numbers and e-mail IDs for receipt of alerts and that in most of the cases, the practitioners have not informed the assesses either the updation in the portal or the receipt of the e-mails which have kept the assesses in dark. >4. In that context, they would submit that even though the provisions under Section 169 (1) (a) to (f) are disjunctive, they should be read conjunctively, failing which, the basic principles of natural justice would be violated. They would all submit that Clauses (a) to (c) of sub section (1) of Section 169 should be read as alternative. >5. It is their contention that Section 169 (1) of the Act should be read in such a manner that it ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... WP 10560 & 10568 of 2021, dated 30.01.2021 in support of their contention that a notice served through portal is a sufficient notice. >9. He had further relied upon the Division Bench of this Court in the case of V.N.V. Builders Pvt., Ltd., Vs State Tax Officer & Other reported in 2024 SCC Online Mad 4927 to contend that these issues can also be raised before the Appellant Authority where there is an efficacious alternative remedy that is available to the respective assesses. >10. Before adverting to Section 169 (1) of the GST Act and Rule 149 of the GST Rules, I propose to deal with various judgments relied upon by the respective counsels appearing on either side. >11. It is to be noted that Rule 52 of the TNGST Rule 1959 had provided for service of notices on the assesses. The same had been considered by the two Division Bench of this Court. Firstly, in the judgment reported in 1972 SCC Online Mad 347, a Division Bench of this Court had rejected the contentions that Section 52(a), (b) & (c) all have to be complied with independently before compliance of Section 52 (d). The Division Bench had held that the authority would have to comply with any of the three modes under ( ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ture can be effected under clause (d). It is not in dispute that one of the modes of service contemplated under clause (c) is service of notice by registered post, and such service has been found to be ineffective in this case. Therefore, the assessing authority was justified in proceeding to serve the assessment order by affixing it in the petitioner's place of business under rule 52(d).. .". >13. Coming to Section 169(1), it is to be noted that a learned Single Judge of this Court in a judgment in the case of Pandidorai Sethupathi Raja Vs Superintendent of Central Tax, Chennai reported in 2022 SCC Online Mad 8986 had held that it is the obligation of the assessee to visit the portal and therefore, posting of summons and orders through portal is a sufficient compliance of notice on the assessee and therefore, there is no necessity for any alert. The learned single Judge had also compared the explanation of (r) to (u) of Section 144B of the Income Tax Act which had mandated an alert either to the registered e-mail ID of the assessee or by way of SMS to the registered mobile number of the assessee. >14. The judgment of the learned Single Judge relied upon by the lear ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or >(d) by making it available on the common portal; or >(e) by publication in a newspaper circulating in the locality in which the taxable person or the person to whom it is issued is last known to have resided, carried on business or personally worked for gain; or >(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. >(2) Every decision, order, summons, notice or any communication shall be deemed to have been served on the date on which it is tendered or published or a copy thereof is affixed in the manner provided in sub-section (1). >(3) When such decision, order, summons, notice or any communication is sent by registered post or speed post, it shall be deemed to have been received by the addressee at the expiry of the period normally taken by such post in transit unless the contrary is proved." >17. Before proceeding any further, it woul ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... last known place of business or residence; or >(c) by sending a communication to his email address provided at the time of registration or as amended from time to time; or >(d) by making it available on the common portal; or >(e) by publication in a newspaper circulating in the locality in which the taxable person or the person to whom it is issued is last known to have resided, carried on business or personally worked for gain; or >(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. >(2) Every decision, order, summons, notice or any communication shall be deemed to have been served on the date on which it is tendered or published or a copy thereof is affixed in the manner provided in subsection (1). >(3) When such decision, order, summons, notice or any communication is sent by registered post or speed post, it shall be de ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s will prevail over the Statute cannot be accepted. >21. It is to be noted that in the judgments relied upon by the learned counsel for the respondents have not dealt with Section 169 in its entirety When the modes of service have been prescribed, such services should be effectively done as prescribed. >22. In such view of the matter, I am inclined to hold that Section 169 mandates a notice in person or by registered post or to the registered e-mail ID alternatively and on a failure or impracticability of adopting any of the aforesaid modes, then the State can, in addition, make a publication of such notices/ summons/ orders in the portal/ newspaper through the concerned officials. >23. In view of the aforesaid findings and reasoning, I am inclined to set aside the orders of assessment impugned in these Writ Petitions. The respective petitioners shall file their replies to the show cause notices, based upon which, the impugned assessment had been made, on or before 31.01.2025 and thereafter, the respective respondents shall afford an opportunity of hearing to the respective petitioners as provided under law and pass appropriate orders on merits and in accordance with law. ..... X X X X Extracts X X X X X X X X Extracts X X X X
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