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TMI Blog2025 (4) TMI 1308X X X X Extracts X X X X X X X X Extracts X X X X ..... 025 : Mr. G. Nanmaran Special Government Pleader COMMON ORDER Common question that arises for consideration in this batch of writ petitions is whether service of notice/order by making available in the Common Portal is valid. The writ petitions are thus disposed of by a common order with regard to the above question. The writ petition titled M/s.Poomika Infra Developers is being treated as the lead matter, for the purpose of disposing of the common question that arises in the present batch of writ petitions. This court shall refer to the facts in the above lead matter i.e., in the case of Poomika W.P.No.33562 of 2024. 2. Brief facts: 2.1. Petitioner in W.P. No.33562 of 2024 was engaged in providing works contract service primarily to Central and State Government. Petitioner was registered under Goods and Service Tax Act, 2017 (hereinafter referred to as "GST Act"). Petitioner filed statutory returns and it is stated that appropriate taxes were also duly discharged. Petitioner was assigned to Central jurisdiction. 2.2. While so, petitioner's place of business was visited by GST Intelligence on 01.12.2023, and their books were verified by the State Tax Officers. During the c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... for the purpose of facilitating registration, payment of tax, furnishing of returns, computation and settlement of integrated tax. That common portal is not notified for communication of notice or order under the GST Act. The primary purpose of GST portal is only payment of tax and furnishing of returns. 3.5. That the legislature provides for 6 different modes of service of notice/order, summons or other communications including by making available the same in the common portal. The legislative intent is not to serve notice / order by uploading the same in the Common Portal, as evident from the fact that wherever legislature intended that proceedings are to be communicated by making it available in the common portal, the same is expressly provided. The following rules were relied upon in support thereof viz., Rule 8 (Application for Registration), Rule 26 (Method of Authentication), Rule 60 (GSTR-2A) and Rule 90 (Refund). 3.6. That Rule 142 provides that summary of show cause notice in Form DRC-1 shall be issued electronically, thereby impliedly excluding service of detailed notice by uploading in the common portal. 3.7. That GST Common Portal is not a Designated Computer Resour ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tal notified for service of notice / order issued in the course of adjudication, overlooks the express provisions contained in Section 169 of GST Act. It does not contemplate notifying a Common Portal for service of notice / order in terms of Section 146 of GST Act. 4.5. Reliance on Rule 142(1) of GST Rules, to submit that what is contemplated is only issuance of summary of show cause notice in Form DRC-01 and not the detailed notice which has to be issued otherwise, thus service of detailed notice by making it available in the common portal is invalid, is contrary to the express provisions of Section 169 of the Act. 4.6. That it is not in dispute that common portal is a computer resource for the purpose of Information Technology Act, 2000 (hereinafter referred to as "IT Act"). It is also not in dispute that each of the taxable person registered under GST Act are given an unique login ID and Password to enable them to have access to the portal. Common portal is thus a "Designated Computer Resource", for both Department and taxable persons. That in terms of Section 13 (2) (a) of IT Act, 2000, receipt occurs when the electronic record in the present case notice/order enters the "De ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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." 5.2. On a plain reading of Section 169 of the Act, it is clear that various modes of service from (a) to (e) are alternate modes of service. This would be evident from the expressions "shall be served by any one of the following modes", employed in Section 169 of the Act before enumeration of various methods of service viz., a) by giving or tendering it directly or by a messenger including a courier to the addressee or the taxable person or to his manager or authorized representative or an advocate or a tax practitioner holding authority to appear in the proceedings on behalf of the taxable person or to a person regularly employed by him in connection with the business, or to any adult member of family residing with the taxable person; or (b) by registered post or speed post or courier ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... le construing Section 169 of the GST Act, 2017, it may do well to compare and contrast Rule 52 of the Tamil Nadu General Sales Tax Rules, 1959, with Section 169 of the GST Act. The following Table is relevant in this regard: Rule 52 of TNGST Rules, 1959 Section 169 of GST Act Rule 52(1). Service of notices - The service on a dealer of any notice, summons or order under the Act or these rules may be effected in any of the following ways, namely: - (a). by giving or tendering it to such dealer or his manager or agent or the legal practitioner appointed to represent him or to his authorised representative, or Explanation.- Endorsement by person who delivers the notice, etc., of having tendered or given it will be proof for the purpose of this sub-rule. (b). if such dealer or his manager or agent or the legal practitioner appointed to represent him, or his authorised representative is not found, by giving or tendering it to any adult member of his family; (c). if the address of such dealer is known to the assessing authority, by sending it to him by registered post; (d). if none of the modes aforesaid is practicable, by affixing it in some conspicuous place at his last known pl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the expiry of the period normally taken by such post in transit unless the contrary is proved. 5.6. The above table would show that Section 169 of the Act, is similarly, if not identically structured to Rule 52 of the Tamil Nadu General Sales Tax Rules, in the sense that various modes of service from clauses (a) to (c) under Rule 52 of TNGST Rules and clauses (a) to (e) to Section 169 of the GST Act, are alternate before resorting to service of notice/order, summons or other communications by affixture under clause (d) to Rule 52 of TNGST Rules and clause (f) to sub-section (1) of Section 169 of the Act. It thus appears that construction placed on Rule 52 of TNGST Rules, would have a material bearing on construction of Section 169 of the GST Act. Applying the above decision of the Division Bench of this Court in Sanjeevi Naidu case referred supra, it appears that the modes of service provided in clauses (a) to (f) to Section 169 of the GST Act are alternate to each other before resorting to clause (f) to sub-section (1) to Section 169 of the Act. However, this Court in W.P.(MD).No.26481 of 2024 and W.P.No.5539 of 2025 relied upon by the petitioners, had found that the modes of ser ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. 5.8. The underlined portions would have to be inserted if the construction by the petitioner is to be accepted. In other words the above construction would result in recasting the provision, which is impermissible. The role of a Court is limited to interpret the law made by a competent legislature. Addition of words or supplying omission or omitting words in a legislation through a process of interpretation would amount to judicial legislation which ought to be avoided. [(i) Dr.Ganga Prasad Verma and Others vs. State of Bihar and Others, reported in 1995 Supplement 1 SCC 192; (ii) V.K.Naswa vs. Home Secretary, Union of India and Others reported in 2012 (2) SCC 542] C. Hardship - No reason to depart from plain language 5.9. The next reason which weighed with the learned judge in W.P. No. 5539 of 2025, wherein after adopting the above reasons, proce ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r, summons or other communications by making available on the common portal - Relevance: 5.12. It is not in dispute that the Common Portal under Section 169 (1) (d) of CGST Act is a "computer resource", for the purposes of IT Act, 2000. "Common Portal" is defined under sub-section (26) to Section 2 of the GST Act as under: 2(26) "common portal" means the common goods and services tax electronic portal referred to in section 146; 5.13. On a reading of the above definition, it would be clear that Common Portal is Common Goods and Service Tax Electronic Portal "referred" in Section 146 of the Act. It may thus be relevant to refer to Section 146 of the GST Act which reads as under: "146.Common portal: The Government may, on the recommendation of the Council, notify the Common Goods and Services Tax Electronic Portal for facilitating registration, payment of tax, furnishing of returns, computation and settlement of integrated tax, electronic way bill and for carrying out such other functions and for such purposes as may be prescribed." 5.14. Submission of petitioner that Section 146 of the GST Act does not enable notifying common portal for serving notice/ orders/ communication ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 5.18. Learned counsel for Respondent would also submit that they do not serve notice in any other common portal other than www.gst.gov.in. E) Rule 142 of GST rules - Relevance: 5.19. Reliance on Rule 142 of the GST Rules was made to submit that in terms of the above Rules, what is contemplated is only service of summary of notice/order, summons or other communications in the common portal and thus service of detailed notice/order, summons or other communications by making available in the common portal is impermissible. The above contention is liable to be rejected inasmuch is it is contrary to the plain language of Section 169 of the Act which provides that notice/orders, summons or other communications shall be served by making available the same in "common portal". The above construction is also contrary to settled position that in case of conflict between the enabling Act and a rule or any other delegated legislation, the former shall prevail and the delegated legislation has to be read and construed consistent with the enabling Act. [ITW Signode India Ltd. v. Collector of Central Excise, (2004) 3 SCC 48, p. 71 (para 56): (2004) 6 JT 456; Nowa ADS v/ Secretary, Department of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ginator and the addressee, an electronic record is deemed to be despatched at the place where the originator has his place of business, and is deemed to be received at the place where the addressee has his place of business. (4) The provisions of sub-section (2) shall apply notwithstanding that the place where the computer resource is located may be different from the place where the electronic record is deemed to have been received under sub-section (3). (5) For the purposes of this section,- (a) if the originator or the addressee has more than one place of business, the principal place of business, shall be the place of business; (b) if the originator or the addressee does not have a place of business, his usual place of residence shall be deemed to be the place of business; (c) -usual place of residence?, in relation to a body corporate, means the place where it is registered." 5.21. It appears to me that the common portal is a designated computer resource for both Department as well as taxable person inasmuch as the taxable person is given an unique login ID and password to enable them to have access to the portal. The common portal would thus constitute a "designate ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... xclude uploading as one of the modes of service. This argument is rejected. 37. There is yet another aspect to the matter. The Income-tax Act, 1961 permits uploading of orders upon the portal, or on the web application, and construes the same as a proper method of service. However that statute, in Explanations (r) to (u) of Section 144B thereof, contains a requirement that the official concerned, issue an alert either to the registered e-mail of the assessee or by way of SMS to the registered mobile number of the assessee, to bring to the notice of the assessee that such order/communication has been uploaded. Such a facility is not available under the GST Act. 38. The explanation put forth by the revenue in this regard, is that an assessee under the provisions of the Goods and Services Tax Act enactments is under a statutory obligation to file a return on monthly basis and hence is expected to visit the portal once a month for this purpose. The necessity for an alert thus stands obviated, for this reason. 39. I find this explanation acceptable and hence conclude that uploading of orders upon the common portal constitutes proper mode of service." 5.24. Though normally, this C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... order shall result in restoration of the impugned order. f) If there is any recovery by way of attachment of Bank account or garnishee proceedings, the same shall be lifted /withdrawn on complying with the above condition viz., payment of 25 % of the disputed taxes. g) On complying with the above condition, the impugned order of assessment shall be treated as show cause notice and the petitioner shall submit its objections within a period of four (4) weeks from the date of receipt of a copy of this order along with supporting documents/material. If any such objections are filed, the same shall be considered by the respondent and orders shall be passed in accordance with law after affording a reasonable opportunity of hearing to the petitioner. It is made clear that if the above conditions viz., 25% of disputed taxes is not complied or objections are not filed within the stipulated period, four weeks respectively from the date of receipt of a copy of this order, the impugned order of assessment shall stand restored. 8. Before parting, I must state that the matter was listed under the caption for clarification on 08.04.2025, this Court suggested the Commissioner of Commercial Ta ..... X X X X Extracts X X X X X X X X Extracts X X X X
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