UPLOADING OF SHOW CAUSE NOTICE AND ORDER ON PORTAL WAS ITSELF VALID COMMUNICATION TO THE REGISTERED PERSON

[Mr. M. GOVINDARAJAN]

Section 169 (1) of the Central Goods and Services Tax Act, 2017 (‘Act’ for short) provides that any decision, order, summons, notice or other communication under this Act or the rules made there under shall be served by any one of the following methods-

• 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
• by registered post or speed post or courier with acknowledgement due, to the person for whom it is intended or his authorized representative, if any, at his last known place of business or residence; or
• by sending a communication to his e-mail address provided at the time of registration or as amended from time to time; or
• by making it available on the common portal; or
• 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
•  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.

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 above said manner. 

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.

In M/S YASH KRISHI SEVA KENDRA THROUGH ITS PROPRIETOR - MR. RAJESH MEENA VERSUS THE STATE OF MADHYA PRADESH THROUGH ITS PRINCIPAL SECRETARY, JOINT COMMISSIONER CUM APPELLATE AUTHORITY FOR STATE GOODS AND SERVICE TAX, ASSISTANT COMMISSIONER OF STATE TAX - 2022 (11) TMI 1123 - MADHYA PRADESH HIGH COURT the Revenue issued show cause notice which was made available in the common portal for the cancellation of the registration certificate. The petitioner did not respond to the show cause notice by downloading the show cause notice from the common portal.  Therefore the Authority cancelled the registration certificate and posted the same in the common portal.  On knowing the cancellation of registration certificate the petitioner filed an appeal under section 107 of the Act before the Joint Commissioner-cum-Appellate Authority.  The Appellate Authority dismissed the appeal as time barred vide their order dated 04.03.2022.

Aggrieved against the dismissal order of appellate authority the petitioner filed the present writ petition before the High Court.  The petitioner prayed for the following-

• The Honorable High Court may kindly be pleased to summon the entire relevant record from the possession of the respondents, for its kind perusal.
• To quash and set aside the impugned order dated 04.03.2022 passed by the second respondent in the interest of justice;
• To direct the respondent No. 2 to hear the matter on the merit in the interest of justice;
• To direct the respondents to revoke the cancelled GST Registration of the petitioner;
• To grant any other relief which the Court deems fit in the facts and circumstances of then case to the petitioner.

The petitioner contended that neither the show cause notice dated 16.05.2018 under section 29(2) of the MP GST Act, 2017 nor the order of cancellation was communicated to the petitioner and therefore he was deprived of preferring an appeal under section 107 of the Act within the prescribed period of limitation.

The respondents contended the following-

• Vide return filed on 23.08.2022 inter alia revealed that the show cause notice as well as the order of cancellation of registration certificate dated 06.06.2018 were both uploaded on the portal according to Section 169(1)(d) of the Act.
• Once the show cause notice as well as the order of cancellation of registration was available on the portal the same was available to the petitioner.
• The petitioner may be downloaded the same from the portal for filing appeal before the Appellate Authority.
• Section 169(1)(d) provides that any decision, summon or notice or communication made under the GST Act or Rules framed there under is to be service by making it available on the official portal.
• The petitioner was well aware of the uploading of show cause notice and order on the portal but he did not take advantage of the same for which no one else except the petitioner can be blamed.

In a rejoinder the petitioner relied on a judgment in M/S LAKHAN SINGH CHAUHAN AND COMPANY, M/S PARMANAND TRADERS, M/S NAVAAKAR REAL ESTATES VERSUS UNION OF INDIA AND OTHERS - 2020 (3) TMI 290 - MADHYA PRADESH HIGH COURT WP No. 21978/2019 by MP High Court in which the High Court held that the order of cancellation of registration is to be communicated to the petitioner.  Since the same has not been communicated an opportunity is to be given to the petitioner to prefer appeal.  The High Court analyzed the said order.  The High Court observed that in the said order the order of cancellation has been communicated to the erstwhile counsel of the petitioner and the period of limitation would be counted from the time the petitioner gained knowledge of the impugned order and not from the date of communication to erstwhile Counsel.

The High Court observed that in the present case it is clear from the return that the respondents adhered to the provisions of Section 169 of the Act as regards communication of the show cause notice as well as order of cancellation of registration and therefore no fault can be found with the Revenue.  The High Court also observed that the show cause notice in question was sent to the mobile number belonging to the petitioner and email address of the erstwhile consultant.  Therefore the High Court held that the appeal filed by the petitioner was time barred and the appellate authority has no discretion to extend the period for filing appeal.  The High Court held that there was no ground to interfere with the order of the Appellate Authority.