9911796707🚨 Important Update for Our Users
We are transitioning to our new and improved portal - www.taxtmi.com - for a better experience.
Follow us:
|
Home
Forgot password New User/ Regiser ⇒ Register to get Live Demo
2025 (6) TMI 1000 - HC - GSTMode of service of notice - no service was effected by adhering to the mode of service provided for in Section 169(1) Clauses (a) to (c) of the WBGST/CGST Act 2017 - condonation of delay in filing appeal. Mode of service of notice - no service was effected by adhering to the mode of service provided for in Section 169(1) Clauses (a) to (c) of the WBGST/CGST Act 2017 - HELD THAT - Admittedly in this case the order issued under Section 73 of the said Act for the tax period of 2017-2018 to 2019-2020 was preceded with a show-cause notice. The show-cause was duly uploaded on the portal. The petitioner had duly responded to the show-cause and thus had notice of the proceeding. The unambiguous and plain language employed in Section 169(1) read with sub-Sections 2 and 3 makes it amply clear that the service of notice can be effected by any of the modes provided for in Clauses (a) to (f) of Section 169(1) of the said Act. The only restriction in my view in effecting service is found in Clause 169(1)(f) since the opening words of the said Clause requires that if none of the modes as aforesaid is practicable that is to say modes of service provided for in Clauses (a) to (e) is not practicable then the mode of service as provided in Clause (f) can be applied. Thus having regard to the clear language employed in Section 169 of the said Act no view contrary to the intention expressed in the above section is acceptable. The contention that service of notice of the order under Section 73 of the said Act on the petitioner was not complete without a personal service thereof on the petitioner as per the mode provided in Section 169(1) Clauses (a) to (c) of the said Act cannot be accepted. Condonation of delay - HELD THAT - The appellate authority had mechanically by relying on the provisions of sub-Section 4 of Section 107 of the said Act and by treating that it has no power to condone the delay beyond the extended period of one month had rejected the appeal - Division Bench of High Court in the case of S.K. Chakraborty ors. vs. Union of India 2023 (12) TMI 290 - CALCUTTA HIGH COURT has already taken a view on the power of the appellate authority to condone the delay beyond the extended period of one month. Conclusion - i) Service by uploading on the portal is valid and complete service under Section 169(1)(d). ii) The appellate authority erred in rejecting the appeal for delay without proper consideration of condonation; the order dated 24th December 2024 is set aside. The impugned order set aside - petition disposed off.
1. ISSUES PRESENTED and CONSIDERED
The core legal questions considered by the Court in this matter are: (a) Whether service of an order under the WBGST/CGST Act, 2017 by uploading it on the common portal as per Clause (d) of Section 169(1) constitutes valid and complete service, especially when service by modes under Clauses (a) to (c) has not been effected; (b) Whether the State is obligated to first exhaust the modes of service specified in Clauses (a) to (c) of Section 169(1) before resorting to service by uploading on the portal under Clause (d); (c) Whether the appellate authority was correct in rejecting the petitioner's appeal on the ground of delay without appropriately considering the petitioner's application for condonation of delay; (d) The interpretation and application of Section 169 of the WBGST/CGST Act, 2017, particularly the hierarchy and permissibility of various modes of service; (e) The applicability and effect of precedents, specifically the decision of the Madras High Court in P.N. Traders vs. Deputy State Tax Officer, on the mode of service under Section 169. 2. ISSUE-WISE DETAILED ANALYSIS Issue (a) and (b): Validity of service by uploading on the portal under Section 169(1)(d) without prior service under Clauses (a) to (c) Relevant legal framework and precedents: Section 169(1) of the WBGST/CGST Act, 2017 prescribes six alternative modes of service for any decision, order, summons, notice or other communication under the Act. These are:
Subsections (2) and (3) clarify the date of deemed service and presumption of receipt in case of registered post. The Madras High Court in P.N. Traders held that service under Section 169 mandates personal service or service by registered post or e-mail at the first instance, and only if these modes fail, can service by uploading on the portal or publication in newspapers be resorted to. Court's interpretation and reasoning: The Court carefully examined the language of Section 169(1), noting the use of the word "or" after each clause, indicating that the modes of service are alternative and not hierarchical, except for Clause (f) which expressly applies only "if none of the modes aforesaid is practicable." The Court emphasized that Clause (f) contains a clear precondition, but no such restriction exists for Clauses (a) to (e). Therefore, service by making the order available on the common portal under Clause (d) is a valid mode of service without the necessity to first attempt service under Clauses (a) to (c). The Court rejected the petitioner's contention that service by uploading on the portal is incomplete or invalid unless preceded by service under Clauses (a) to (c). The Court respectfully disagreed with the Madras High Court's interpretation in P.N. Traders, holding that the plain and unambiguous language of Section 169 does not support the hierarchical approach suggested therein. Key evidence and findings: The order under Section 73(9) was uploaded on the common portal as per Clause (d). The petitioner had notice of the proceedings, having responded to the show-cause notice also uploaded on the portal. There was no evidence that service by other modes was attempted or necessary. Application of law to facts: The Court applied the statutory language strictly and held that uploading the order on the portal sufficed as valid service. Therefore, the petitioner's appeal was not delayed due to failure of service. Treatment of competing arguments: The petitioner argued that service must be personal or by registered post or e-mail first, relying on P.N. Traders. The State contended that service by uploading on the portal is an independent and valid mode. The Court sided with the State, emphasizing the plain statutory language and rejecting the hierarchical interpretation. Conclusions: Service of notice by uploading on the portal under Section 169(1)(d) is valid and complete. The petitioner's claim of defective service and consequent delay in filing the appeal is untenable. Issue (c): Consideration of the application for condonation of delay by the appellate authority Relevant legal framework and precedents: Section 107(4) of the WBGST/CGST Act, 2017 deals with the time limit for filing appeals and the power of the appellate authority to condone delay. The appellate authority had rejected the appeal on the ground of delay, holding it lacked power to condone delay beyond the extended period of one month. A Division Bench of the Calcutta High Court in S.K. Chakraborty & ors. vs. Union of India (MAT 81 & 82 of 2022) has taken a view on the power of the appellate authority to condone delay beyond the extended period. Court's interpretation and reasoning: The Court found that the appellate authority mechanically rejected the appeal relying on a restrictive interpretation of Section 107(4), without properly considering the petitioner's application for condonation of delay. The Court held that the appellate authority's reasoning was flawed and inconsistent with the Division Bench precedent. Key evidence and findings: The appellate authority did not examine the merits of the petitioner's explanation for delay and summarily dismissed the appeal. Application of law to facts: The Court set aside the appellate authority's order dated 24th December 2024 and directed the appellate authority to hear the appeal on merit, subject to the petitioner making a payment of Rs. 25,000/- to the High Court Legal Services Committee within four weeks. Treatment of competing arguments: The petitioner urged for consideration of the condonation application; the State relied on the statutory time limits. The Court favored a fair hearing on merits rather than a mechanical rejection. Conclusions: The appellate authority erred in rejecting the appeal solely on the ground of delay without proper consideration of the condonation application. The appeal must be heard on merits. 3. SIGNIFICANT HOLDINGS The Court held: "The unambiguous and plain language employed in Section 169(1) read with sub-Sections 2 and 3 makes it amply clear that the service of notice can be effected by any of the modes provided for in Clauses (a) to (f) of Section 169(1) of the said Act. The only restriction in my view in effecting service, is found in Clause 169(1)(f) since, the opening words of the said Clause requires that 'if none of the modes as aforesaid is practicable', that is to say modes of service provided for in Clauses (a) to (e) is not practicable, then the mode of service as provided in Clause (f) can be applied." "No view, contrary to the intention expressed in the above section is acceptable. As such I respectfully disagree with the view expressed by the Hon'ble Madras High Court in the case of P.N. Traders (supra)." "The appellate authority had mechanically by relying on the provisions of sub-Section 4 of Section 107 of the said Act and by treating that it has no power to condone the delay beyond the extended period of one month, had rejected the appeal. In this context, I may note a Division Bench of our High Court in the case of S.K. Chakraborty & ors. vs. Union of India ... has already taken a view on the power of the appellate authority to condone the delay beyond the extended period of one month. Having regard thereto, I am unable to accept the reasoning provided by the appellate authority." Core principles established include:
Final determinations on each issue: (a) Service by uploading on the portal is valid and complete service under Section 169(1)(d); (b) The State is not required to first attempt service under Clauses (a) to (c) before resorting to Clause (d); (c) The appellate authority erred in rejecting the appeal for delay without proper consideration of condonation; the order dated 24th December 2024 is set aside; (d) The appeal shall be heard on merit upon payment of Rs. 25,000/- to the High Court Legal Services Committee within four weeks.
|
