2025 (6) TMI 1245 - HC - GST

Challenge to assessment order - non-service of notice - neither the SCN nor the impugned order of assessment has been served by tendering to the petitioner or by registered post instead it was uploaded in the common portal under the head View Additional Notices and Order tab - Violation of principles of natural justice - petitioner is ready and willing to pay 25% of the disputed tax - HELD THAT - Upon perusal of the materials it is evident that the impugned show cause notice was uploaded on the GST Portal Tab. According to the petitioner the petitioner was not aware of the issuance of the show cause notice issued through the GST Portal and the original of the said show cause notice was not furnished to them. In such circumstances this Court is of the view that the impugned assessment order came to be passed without affording any opportunity of personal hearing to the petitioner confirming the proposals contained in the show cause notice. No doubt sending notice by uploading in portal is a sufficient service but the Officer who is sending the repeated reminders inspite of the fact that no response from the petitioner to the show cause notices etc. the Officer should have applied his/her mind and explored the possibility of sending notices by way of other modes prescribed in Section 169 of the GST Act which are also the valid mode of service under the Act otherwise it will not be an effective service rather it would only fulfilling the empty formalities - Merely passing an ex parte order by fulfilling the empty formalities will not serve any useful purpose and the same will only pave way for multiplicity of litigations not only wasting the time of the Officer concerned but also the precious time of the Appellate Authority/Tribunal and this Court as well. Thus Conclusion - This Court finds that there is a lack of opportunities being provided to serve the notices/orders etc. effectively to the petitioner. Hence this Court is inclined to set-aside the impugned order. The impugned order passed by the respondent is set aside - the matter is remanded to the respondent for fresh consideration - Petition allowed by way of remand.

Summary

1. ISSUES PRESENTED and CONSIDERED

The core legal questions considered by the Court in this matter are:

- Whether service of show cause notices and assessment orders solely by uploading on the GST common portal constitutes effective and valid service under the GST Act.

- Whether the petitioner was afforded a fair opportunity of personal hearing and participation in the adjudication proceedings as mandated by principles of natural justice and the GST legal framework.

- Whether the assessing authority complied with the procedural requirements under Section 169 of the GST Act regarding modes of service of notices and orders.

- The propriety of confirming the assessment order in the absence of any response or participation by the petitioner, particularly when the petitioner contends unawareness of the proceedings.

- The appropriate remedial course where procedural lapses in service and opportunity to be heard are established.

2. ISSUE-WISE DETAILED ANALYSIS

Issue 1: Validity of Service of Notices and Orders by Uploading on GST Portal

Relevant legal framework and precedents: Section 169 of the GST Act prescribes the modes of service of notices and orders, including delivery by hand, registered post, or electronic means. Uploading documents on the GST common portal is recognized as a mode of electronic service. However, the effectiveness of such service depends on whether the recipient has actual knowledge or reasonable means to access the notice.

Court's interpretation and reasoning: The Court acknowledged that uploading notices on the GST portal is a recognized mode of service. However, it emphasized that mere uploading without ensuring that the recipient is aware of the notice does not amount to effective service. The Court reasoned that when repeated reminders go unheeded, the assessing officer must consider alternative modes of service prescribed under Section 169, such as registered post with acknowledgment (RPAD), to ensure actual receipt.

Key evidence and findings: The petitioner asserted that it was unaware of the show cause notice and the impugned order because these were not served by tender or registered post but only uploaded on the portal. The petitioner did not file any reply or participate in the hearing, attributing this to lack of notice. The respondent issued three reminders and granted an opportunity for personal hearing, but no response was received.

Application of law to facts: The Court found that the assessing officer failed to explore alternative modes of service after non-response to portal notices, thereby not fulfilling the statutory mandate for effective service. The mere uploading on the portal without additional steps to ensure notice was ineffective.

Treatment of competing arguments: The respondent argued that uploading on the portal sufficed for service. The Court rejected this argument as a rigid and formalistic approach, highlighting that such practice without ensuring actual notice defeats the purpose of the GST Act's procedural safeguards.

Conclusions: Service solely by uploading on the GST portal, without further efforts to ensure receipt, is insufficient and not an effective mode of service under the GST Act.

Issue 2: Adequacy of Opportunity of Personal Hearing and Participation

Relevant legal framework and precedents: Principles of natural justice and the GST procedural law require that a person affected by an adverse order be given an opportunity to be heard before passing such order. This includes the right to receive notice and participate in the hearing.

Court's interpretation and reasoning: The Court observed that the petitioner was not afforded a meaningful opportunity of personal hearing as the impugned order was passed ex parte due to non-filing of reply or appearance. The Court noted that the petitioner's unawareness of the proceedings due to ineffective service negated the possibility of participation.

Key evidence and findings: The petitioner was issued reminders and a chance for personal hearing, but no response was received. However, the petitioner contended that it was unaware of the show cause notice and thus could not respond or appear.

Application of law to facts: The Court held that since effective service was not made, the petitioner was deprived of the opportunity to participate. Passing an ex parte order under such circumstances violates the principles of natural justice.

Treatment of competing arguments: The respondent did not seriously contest the petitioner's claim of unawareness and was amenable to granting a final opportunity for hearing.

Conclusions: The petitioner was not given a fair opportunity of hearing due to defective service, rendering the impugned order unsustainable.

Issue 3: Remedial Directions and Deposit of Disputed Tax

Relevant legal framework and precedents: Courts have the power to set aside orders passed without compliance with procedural safeguards and to remit matters for fresh consideration. Deposit of a portion of disputed tax is often directed to balance interests and ensure compliance during re-adjudication.

Court's interpretation and reasoning: The Court found it appropriate to set aside the impugned order and remit the matter to the assessing authority for fresh adjudication, directing the petitioner to deposit 25% of the disputed tax voluntarily offered by the petitioner. The Court mandated that the petitioner be afforded a clear opportunity to file reply and be heard personally before a fresh decision.

Key evidence and findings: The petitioner voluntarily offered to deposit 25% of the disputed tax as a condition for reconsideration.

Application of law to facts: The Court balanced the interests of the revenue and the petitioner by ordering partial deposit and fresh adjudication with proper service and hearing.

Treatment of competing arguments: The respondent did not oppose the petitioner's request for a final opportunity and partial deposit.

Conclusions: The matter is remanded for fresh consideration after compliance with proper service and hearing, with the petitioner directed to deposit 25% of the disputed tax.

3. SIGNIFICANT HOLDINGS

- "No doubt sending notice by uploading in portal is a sufficient service, but, the Officer who is sending the repeated reminders, inspite of the fact that no response from the petitioner to the show cause notices etc., the Officer should have applied his/her mind and explored the possibility of sending notices by way of other modes prescribed in Section 169 of the GST Act, which are also the valid mode of service under the Act, otherwise it will not be an effective service, rather, it would only fulfilling the empty formalities."

- "Merely passing an ex parte order by fulfilling the empty formalities will not serve any useful purpose and the same will only pave way for multiplicity of litigations, not only wasting the time of the Officer concerned, but also the precious time of the Appellate Authority/Tribunal and this Court as well."

- The Court established the principle that effective service of notices and orders under the GST Act requires the assessing authority to actively ensure receipt of such notices, especially when no response is forthcoming from the taxpayer through the initial mode of electronic service.

- The Court held that failure to provide effective service and opportunity to be heard renders the assessment order liable to be set aside.

- The Court directed that the petitioner be given a final opportunity to respond and be heard, and the matter be reconsidered afresh in accordance with law.