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TMI Blog2025 (4) TMI 1381X X X X Extracts X X X X X X X X Extracts X X X X ..... ses, Tvl.Nambi India Engineering, Ideal Textiles, MPM Enterprises, Sri Annamalai Traders, Chota Dhobi Laundry Solutions Private Limited, Tvl Sri Vinayaga Tiles and Granites, M/s.Incarnus Technologies India Private Limited, Tvl Pluto Shipping and Logistics Private Limited, Chennai Polymer House, Tvl SVN Leathers, Tvl.Katyayani Granites, Tvl Sri Mahalakshmi Traders, Tvl Sri Mahalakshmi Traders, Clar Auqa Private Limited, VPR Enterprises, M/s Md Kitchen Appliances, M/s VSL Earth Movver, Tvl K V K Senthilnathan Contractor, Tvl Devi Hardware and Electricals, Tvl.Chem Blue Diamond Sales And Service, Tvl.Vardhan Infraastructure, Sindu Priya Enterprises, Tvl .DHANALAKSHMI METALFINISHERS, Tvl Sanskar Corporation, Tvl Sri Dhanalakshmi Industries, M/S.Sakthi Cotton Mills, Sree Kumaran Trading Company, VBN Builders, Dharmaraj Chithra, Tvl AKR Construction, Tvl Priyanka Arcade Limited, M/s Amman Tractors, M/s.Ganesha Electricals, Ms Optima Life Sciences Private Limited, M/s. SPP Enterprises Pvt. Ltd. Versus State Tax Officer (intelligence), Group-2, State Tax Officer, namakkal (rural)(c), The Assistant Commissioner(st), The Deputy Commissioner (CT), The State Tax Officer (ST), Deputy State Tax ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gistration of the petitioner was cancelled based on the voluntary request made by the petitioner. Subsequent to the said cancellation, the impugned ex parte assessment order was passed by the respondent. 2.4 In all the other writ petitions, being unaware of the show cause notices, the petitioners were unable to file their reply. Under these circumstances, the assessment orders have been passed in ex parte without providing any opportunity of personal hearing to the petitioners. 3. Submissions made on behalf of the petitioners: 3.1 Mr.Joseph Prabhakar, Mr.S.Durairaj, Mr.G.Natarajan, Mr.K.Sankaranarayan, Mr.S.Sathyanarayan, Mr.N.V.Balaji & Mr.V.Sundaresan, all the learned counsel had advanced their arguments on behalf of the petitioners. 3.2 According to the petitioners, they were unable to participate in the proceedings for the following reasons: i) In majority of cases, the Show Cause Notices were uploaded by the respondents in the "View Additional Notices and Orders" column instead of "View Notices" column and hence, though the petitioners had occasions to visit the portal twice in a month for filing their monthly returns, the said show cause notices were remained unnoticed, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on (2) implies three terms, viz., "tendering", "publishing" and "affixing". The term "tendering" relates to Section 169(1)(a), the term "affixing" relates to Section 169(1)(f) and the term "publishing" relates to Section 169(1)(e) of the GST Act. As far as the provisions of Section 169(1)(b) is concerned, it deals with the service of notice vide RPAD, whereas, Section 169(1)(d) only talks about making it available in the portal. 3.6 Hence, he would contend that the legal fiction mandated in sub-section (2) of Section 169 has no application to the provision of Section 169(1)(d), i.e., making it available in common portal. Therefore, he would submit that the said mode of service is neither sufficient nor effective and thus, in order to comply with Section 169(2) of the GST Act, necessarily the respondents have to send the notices through other modes as well. 3.7 Further, he would submit that in terms of Section 107 of GST Act, a tax payer can prefer an appeal against the assessment order within a period of 3 months from the date on which the said assessment order was communicated. Here, the word "communicated" means serving the assessment order to the Assessee physically, not by si ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the impugned assessment orders came to be passed by the respondents, which is violation of principles of natural justice. 3.11 Therefore, all the respective learned counsel for the petitioners would submit that all these ex parte impugned orders are liable to be set aside. Hence, they requests this Court to remand the matters back to the concerned respondents for fresh consideration. 4. Submissions made by the respondents: 4.1 Per contra, Mr.P.S.Raman, learned Advocate General and Mr.AR.L.Sundaresan, learned Additional Solicitor General appearing for the respondents, in unison, would submit that the provisions of Section 169 of the GST Act provides different modes of services, which are alternative to one another and hence, it would be sufficient if any one of the modes of services is followed by the respondent. 4.2 In these cases, the notices had been uploaded in the common portal in terms of Section 169(1)(d) of the GST Act. Once the notices were uploaded in common portal, it would amount to be tendered and communicated to the Assessee's and the same is deemed to be received by the Assessee's. 4.3 Further, they would submit that the petitioners will have occasion to visit t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ST Act and Sections 12 & 13 of the IT Act and submitted that S.169(2) creates a deeming fiction in regard to date of service only in respect to modes prescribed in S.169(1)(a) "by giving or tendering", S.169(1)(b) "by registered post or speed post or courier", S.169(1)(e) "by publication in a newspaper" and S.169(1)(f) "by affixure". 4.8 The reason for non-inclusion of S.169(1)(c) & 169(1)(d) within deeming fiction of S. 169(2) is that the service of notice/orders in cases where service is effected by email or by uploading to the Common Portal, service happens instantaneously, i.e., the moment the said email has been sent by the Assessing Authority (originator of the email) or when the said Assessing Authority uploads the notice/order on the Common Portal of the assessee. The method of service of an electronic record through an electronic platform such as the Common Portal is dealt with under S.12 and S.13 of the Information Technology Act, 2000. Therefore, there is no necessity to include a provision under the Act to give a deeming fiction with respect to service of electronic records through email or Common Portal since it is dealt with in the specialised law dealing wit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s a "designated computer resource". 4.13 S.2(k) of the IT Act defines a "computer resource" as "computer computer system, computer network, data, computer data base or software". It is of note that the scheme of the IT Act offers an expansive definition of the term computer resource capable of encompassing within its ambit text-messages, email networks, and any computer network created for a specific purpose. 4.14 The IT Act neither defines the term "designated computer resource", nor does it prescribe the manner in which a computer resource becomes a designated computer resource. Thus, to understand what is a designated computer resource and the manner in which a computer resource becomes a designated computer resource one must turn to common parlance and to judicial pronouncements on the subject how must be understood in the manner in which it was intended by Parliament. 4.15 Further, they explained with regard to the designated computer resource and about the manner to designate a computer resource, which reads as follows: i) Designated Computer Resource is not defined under the IT Act Therefore, it is necessary to fall back on the commonly understood meaning of "designated ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Act permits the Assessing Authority to communicate the notices and orders by way of making it available on the Common Portal. The Respondents have gone beyond this statutory mandate and have also sent email and SMS prompts to assessee's intimating them that notices/orders have been uploaded to the Common Portal to enable them to promptly check and retrieve the same. Thus, the Respondents have discharged their statutory obligations. 4.21 The notices and orders were served on the assessee's through a designated computer Common Portal. Thus, the date and time of service ought to be S.13(2)(a)(i) of the IT Act, i.e., when the electronic record enters the designated computer resource or when the notice/order is uploaded on the Common Portal. Thus, service of SCNs and orders on the Common Portal is instantaneous. The limitation period for computing period of appeal under S.107 of the Act must start from the date the order was uploaded on the Common Portal. 4.22 The assessee's in the present batch of writ petitions constitute a tiny fraction of the total number of taxpayers to whom SCNs and orders were served on the Common Portal. During the period for April 2024 November 2024, the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ese cases, the petitioners were aggrieved over the ex parte impugned assessment orders passed by the respondent in violation of principles of natural justice. 7. According to the petitioners, all the notices were uploaded by the respondents in common portal in terms of the Section 169(1)(d) of the GST Act, which is not a valid mode of service. Further, it was contended on behalf of the petitioners that when the other effective modes of services are available, the respondents are supposed to have sent notices through the said alternative modes as well. 8. Arguments were extensively made by referring the provisions of Section 169 & 107 of the GST Act, Rule 142 of GST Rules and Sections 11, 12, 13 of IT Act. By referring the IT Act, it was submitted that the petitioners have not "designated any computer resource" and if no computer resource was "designated", in terms of Section 13(2)(a)(ii) of the IT Act, the time and place of receipt of electronic records would happen only when the said electronic records were retrieved by the Assessee. Hence, according to the petitioners, they came to know about the notices and original assessment orders only when they retrieved it from the portal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng 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. 12. By reading above, it is clear that any decision, order, summons, notices and other communications under the GST Act or Rules made thereunder, shall be served by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and receipt of electronic record.- (1) Save as otherwise agreed to between the originator and the addressee, the despatch of an electronic record occurs when it enters a computer resource outside the control of the originator. (2) Save as otherwise agreed between the originator and the addressee, the time of receipt of an electronic record shall be determined as follows, namely:- (a) if the addressee has designated a computer resource for the purpose of receiving electronic records,- (i) receipt occurs at the time when the electronic record enters the designated computer resource; or (ii) if the electronic record is sent to a computer resource of the addressee that is not the designated computer resource, receipt occurs at the time when the electronic record is retrieved by the addressee; (b) if the addressee has not designated a computer resource along with specified timings, if any, receipt occurs when the electronic record enters the computer resource of the addressee. 16. By reading the above provisions, it is clear that this provision deals with the aspect of time and place of despatch or receipt of electronic records. However, the provisions of Section 169 of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ary defines the term designate in its adjective form as "to mark out to a specific position". The underlying thrust of the definition is to clearly identify someone or something for a particular purpose." 22. Therefore, by reading the above definition, the word "designated" is nothing but to "appoint" or "nominate" or "mark out" or "identify" a particular computer resource. 23. It is very pertinent to point out here that there are occasions for the petitioners/Assessee's to designate the computer resource other than the common portal, for example, when the Assessee is making an application for cancellation of GST Registration, they will provide an e-mail ID and address to the respondents for the purpose of future communication and thereafter, all the communications have to be sent only to the designated computer resource, i.e., e-mail id provided by the Assessee or other addressee. The said situation would fall under the category of Section 13(2)(a)(i) of the IT Act, i.e., the receipt would occur when the electronic record enters the computer resource. 24. On the other hand, if the respondents are communicating to other computer resources, viz., uploading in common portal, eve ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... an designate the common portal as computer resource, from the date of obtaining of GST Registration until its cancellation. Therefore, if an Assessee nominate the common portal as their designated computer resource, the provisions of Section 13(2)(a)(i) of the IT Act will apply. On the other hand, if he failed to designate any computer resources, the provisions of Section 13(2)(b) will come into picture. 29. Therefore, in terms of provisions of Section 169(1)(d) of the GST Act read with Section 13(2)(a)(i) & 13(2)(b) of the IT Act, it is crystal clear that once if the notices, orders and other communications are uploaded in the common portal, the receipt would occur immediately when the electronic records enter the said common portal, despite the fact that it is designated as computer resource by the Assessee or not. 30. In view of the above discussion, it is clear that the common portal is the designated computer resource of the Assessee to send notices, orders, and other communications. In terms of Section 169(1)(d) of the GST Act read with Section 13(2)(a) & 13(2)(b) of the IT Act, once notices are uploaded, the receipt of the same occurs when the said notices enter the comput ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s prescribed therein. This aspect was elaborately discussed by this Court in New Grace Automech Products Pvt. Ltd., vs. State Tax Officer (referred supra). 37. The respondents, being well aware of the fact the mode of service adopted by them is not effective but only sufficient in terms of Section 169(1)(d) of the GST Act, had proceeded to pass ex parte assessment order. Normally, when a mode adopted by the respondents is not effective, they should have explored the possibilities by sending notices through other modes of services as prescribed therein. There is no bar for the respondent to do so. When such being the case, this Court is unable to understand as to why these Assessing officers had repeatedly sent all the notices, reminders, etc., through ineffective mode of service. 38. This Court expects the respondents to send notice vide a mode of service, which is sufficient as well as effective. In this case, there is no dispute on the aspect that the respondent has issued the notices by adopting the mode as prescribed at Section 169(1)(d) of the GST Act, but being well aware of the fact that the mode of service adopted by them was not effective, they proceeded to pass the ex p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ined to set aside the ex parte assessment orders. However, since the mode adopted by the respondent is sufficient mode, the petitioner had chances to view the portal and participate in the proceedings, but they had failed to do so. Therefore, this Court is of the view that the fault is on both the petitioner as well as the respondent and thus, this Court is inclined to set aside the impugned orders on terms. 42. As far as the writ petitions in W.P.Nos.3119, 4015 & 5038 of 2025 are concerned, though the reply was filed by the petitioner, no opportunity of personal hearing was provided by the respondent prior to the passed of impugned orders. Normally, when the respondent is intend to pass any adverse orders, they should have provided sufficient opportunity to the petitioner in terms of Section 75(4) of the GST Act. However, in this case, no such opportunity was provided and thus, it is clear that the impugned order came to be passed not only in contrary to the provisions of Section 75(4) of the GST Act but also in violation of principles of natural justice. Therefore, this Court is inclined to set aside the said impugned orders without any conditions. 43. As far as the writ petiti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 06 of 2025 is set aside and the matter is remanded to the concerned Assessing Officer for fresh consideration on condition that the petitioner shall pay 10% of disputed tax amount to the respondent within a period of four weeks from the date of receipt of copy of this order; iii) The impugned orders pertaining to all the other writ petitions are set aside and the matters are remanded to the respondent for fresh consideration on condition that the petitioners shall pay 25% of disputed tax amount to the concerned Assessing Officers, in each case, within a period of four weeks from the date of receipt of copy of this order. iv) The setting aside of all the impugned orders will take effect from the date of payment of the said amount. v) Thereafter, the petitioner is directed to file a reply along with supportive documents within a period of three weeks from the date of payment as stated above; vi) Thereupon, the respondent is directed to consider the reply and shall issue a clear 14 days notice affording an opportunity of personal hearing to the petitioner and shall hear the petitioner in full and decide the matter in accordance with law iv) Insofar as the Bank Attachment Not ..... 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