date of service of adjudication order, Goods and Services Tax - GST

[SUSHIL BANSAL]

Sir,

our client received adjudication order by speed post on 16.09.2023 but on the GSTIN portal it was uploaded on 14.09.2023 (order & GSTR-07), we filed appeal on 15.12.2023, whether it is out of time & if yes whether we can file condonation request along with physical set yet to be submitted.

Plz guide

Posts / Replies

[KASTURI SETHI]

Dear querist,

Pl. go through this case law.

"Limitation period to file appeal under Section 107 ibid would start from date of service of manual order, even if order is not uploaded online."-----held by Gujarat High Court in the case of BRITANNIA INDUSTRIES LTD. Versus UNION OF INDIA - 2023 (8) TMI 524 - GUJARAT HIGH COURT

[DR.MARIAPPAN GOVINDARAJAN]

I agreed with Sri Sethi.

[Padmanathan Kollengode]

In my humble opinion, the facts are glaringly different from that is in the case mentioned above. In the case cited in the above post, firstly the order was not uploaded but was served only manually. There the question before the Court was whether whether the limitation would begin to run from the date of service of the manual copy of the order or the uploaded one.

In the instant case of the Querist, Order was uploaded in the portal on 14-09-2023. Pls refer to section 169 which deals with service:

169. (1) Any decision, order, summons, notice or other communication under this Act or the rules made thereunder shall be served by any one of the following methods, namely:-

(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 authorised 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 with acknowledgement due, to the person for whom it is intended or his authorised representative, if any, at his last known place of business or residence; or

(c) by sending a communication to his e-mail 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.

Therefore, in my humble opinion, the order is served on 14-9-2023 and the three months has to be reckoned from 14-9-2023 itself and not from the date of manual receipt of the order on 16-9-2023.

[KASTURI SETHI]

The significance of the word, 'OR' coupled with High Court judgement cannot be brushed aside. There are also more case laws in this aspect. The mode of service,'(d)' does not eclipse '(b)'. The mode 'b' does not lose its sheen.

The ratio of the above judgement is applicable to the instant case.

[KASTURI SETHI]

Dear Querist,

What is first actual date of communication ? When did the party come to know FIRST about the Order ? On 16.9.23 or 14.9.23 ?

If Common Portal System was opened on 14.9.23 and you received Order by post on 16.9.23, then the actual date of communication is 14.9.23. If you opened the common portal after 16.9.23 by any reason, and received postal copy of the Order on 16.9.23, the date of communication will be 16.9.23.

The whole issue revolves around the date on which the party comes to know about the order.

Disclaimer : These are my personal views and meant for education purposes only and meant for any legal proceedings.

[KASTURI SETHI]

A registered person is not legally bound to open Common Portal System everyday. There are so many reasons for not opening Common Portal everyday. Moreover, GST law is silent on this aspect.

When law is silent, take the shelter of case law.

[Padmanathan Kollengode]

There are contrary views on this, especially in light of Kerala High Court decision which is directly on this

KODUVAYUR CONSTRUCTIONS VERSUS THE ASSISTANT COMMISSIONER-WORKS CONTRACT, STATE GST DEPARTMENT KERALA, THE DEPUTY COMMISSIONER OF STATE (ARREAR RECOVERY) 2023 (8) TMI 834 - KERALA HIGH COURT

If a view is taken that appellant was not aware of the order in the portal, commissioner does not agree, then it will lead to strenuous litigation, which can be avoided by giving valid reason in Condonation of delay petition, if at all there is any delay in filing appeal within 3 months.

[KASTURI SETHI]

Dear Querist,

There is a case law pertaining to pre-GST era wherein it has been held that the date of Commnication is when the party comes to know about letter/notice/order etc.

The word, 'communication' does not connote a one-way traffic. It is a two-way traffic. See legal meaning, essence and message of the word, 'communication'.

[Padmanathan Kollengode]

Regarding the post 4, apart from the above Kerala High Court Decision, M/S. NEW GRACE AUTOMECH PRODUCTS PVT. LTD., REP. BY ITS MANAGING DIRECTOR MR. N. KUMAR VERSUS STATE TAX OFFICER THE OFFICE OF THE ASSISTANT COMMISSIONER (ST) HOSUR (NORTH) -2 CIRCLE HOSUR 2023 (1) TMI 288 - MADRAS HIGH COURT is also directly on this issue:

7. A careful perusal of language in which Section 169 is couched makes it clear that methods of service adumbrated therein are not conjunctive but are alternate methods of service. The reason is, the language in which sub-section (1) is couched makes it clear that service shall be by one of the methods adumbrated therein. To be noted as many as six methods (a) to (f) have been adumbrated therein.

If the appeal was filed even after the condonable period of 3 + 1 month, then an aggressive stance that date of opening the portal should be taken as considered for limitation purpose can be taken. However in the instant query, the appeal has been filed within the condonable period. Therefore, more efforts can be channelized for the merits of the case.

[Padmanathan Kollengode]

In my Post 7, following extract of the Judgement of Kerala High Court was missed out to be shared:

6. A reading of Clauses (a) to (f) of sub-sec(1) of Sec.169 clearly shows that any decision, order, summons, notice or communication under the Act and Rules can be served on the assessee through any one of the methods mentioned above.

7. The petitioner does not dispute the fact that Ext P1 assessment order was made available on the common portal. The petitioner’s only case is that as its GST registration was cancelled by Ext P2 order, the petitioner was under the impression that it has no liability to the respondents. This contention is untenable in view of the alternative modes of service provided under Sec.169 (1) of the CGST Act. It was the bounden duty of the petitioner to have verified its common portal that is made available as per the provision. Thus, I am of the definite view that the contentions raised in the writ petition that Ext P1 assessment order was not served as per the provisions of the Act is untenable. The writ petition is meritless and is consequentially dismissed.

[SUSHIL BANSAL]

Thank you so much Kasturi Sethi Sir & Padmanathan ji for your valuable advice.One thing is clear that the due date would be counted from 14.09.2023 , however it may be debated for 16.09.2023 also.Looking to this we preferred to file condonation request.

[KASTURI SETHI]

Sh.Sushil Bansal Ji,

Yes, it is safe. Why to take risk ? However, it is our moral duty to make a querist aware of all the possible avenues.

Any case law can be helpful to an assessee even pro-revenue case law also. What we need is art of interpretation of case law and analysis of facts and circumstances of a case.