2025 (6) TMI 1246 - HC - GST

Violation of principles of natural justice - non-service of SCN - impugned order is challenged on the premise that neither the show cause notices 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 - 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 when there is no response from the tax payer to the notice sent through a particular mode the Officer who is issuing notices should strictly explore the possibilities of sending notices through some other mode as prescribed in Section 169(1) of the Act preferably by way of RPAD which would ultimately achieve the object of the GST Act. 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 with terms imposed - The matter is remanded to the respondent for fresh consideration. Petition disposed off by way of remand.

Summary

1. ISSUES PRESENTED and CONSIDERED

The core legal questions considered by the Court 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 before passing the impugned assessment order;

- Whether the assessing authority complied with the procedural requirements under Section 169 of the GST Act regarding modes of service;

- Whether the impugned order confirming the proposals in the show cause notice can be sustained in the absence of effective service and opportunity to be heard;

- The appropriateness of remanding the matter for fresh consideration with directions for effective service and hearing.

2. ISSUE-WISE DETAILED ANALYSIS

Issue 1: Validity of service of notices and orders by uploading on the GST common portal

The legal framework governing service of notices under the GST Act is primarily found in Section 169(1), which prescribes modes of service including delivery by hand, registered post, speed post, courier, or electronic means. Uploading notices on the GST common portal is recognized as a mode of electronic service.

The Court acknowledged that uploading notices on the portal is a sufficient mode of service in principle. However, the Court emphasized that if the taxpayer does not respond to notices sent solely through this mode, the assessing officer must apply their mind and explore alternative modes of service prescribed under Section 169(1), such as sending notices by registered post with acknowledgment (RPAD), to ensure effective communication.

The Court reasoned that mere formal compliance by uploading notices without ensuring actual receipt by the taxpayer would amount to an empty formality and would not fulfill the statutory object of effective service. The Court noted that ineffective service leads to ex parte orders, resulting in multiplicity of litigation and wastage of judicial and administrative resources.

The petitioner contended non-receipt of the show cause notice in physical form and unawareness of the proceedings initiated via the portal. The Court found this credible and held that service by uploading alone was insufficient in the circumstances.

Issue 2: Opportunity of personal hearing before passing the assessment order

The petitioner was granted an opportunity of personal hearing, but did not avail it, allegedly due to non-receipt of the notice. The Court observed that since the petitioner was unaware of the proceedings, the opportunity of hearing was effectively illusory.

The Court underscored the principle of natural justice that an opportunity of hearing must be meaningful and effective. An order passed without affording such an opportunity, especially where service is defective, is liable to be set aside.

Issue 3: Compliance with procedural requirements under Section 169 of the GST Act

The Court interpreted Section 169(1) as mandating that when a taxpayer does not respond to notices sent by one mode, the officer must explore other modes of service to ensure effective communication. The Court found that the assessing authority failed to do so, relying solely on the portal upload despite repeated non-response.

This failure was held to render the service ineffective and the subsequent ex parte order unsustainable.

Issue 4: Validity of the impugned order confirming the proposals in the show cause notice

Given the ineffective service and lack of meaningful hearing, the Court held that the impugned order confirming the proposals in the show cause notice was passed without affording the petitioner a fair opportunity to contest the allegations. Therefore, the order was liable to be set aside.

Issue 5: Remand and directions for fresh consideration

The Court, while setting aside the impugned order, directed the petitioner to deposit 25% of the disputed tax as a condition precedent to further proceedings, noting the petitioner's willingness to do so.

The petitioner was then directed to file a reply with supporting documents within two weeks. The respondent was directed to consider the reply, issue a clear 14-day notice affording an effective opportunity of personal hearing, and decide the matter in accordance with law.

The Court's directions aimed at ensuring procedural fairness, effective service, and compliance with statutory mandates, thereby preventing unnecessary litigation and safeguarding the taxpayer's rights.

3. SIGNIFICANT HOLDINGS

The Court held:

"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."

Core principles established:

• Service of notices under the GST Act must be effective and not merely formal; reliance solely on electronic portal upload without ensuring receipt may be insufficient.
• Assessing officers must explore alternative modes of service prescribed under Section 169(1) when initial service attempts fail.
• Natural justice requires that an opportunity of personal hearing must be meaningful and effective, contingent on effective service.
• Ex parte orders passed without effective service and hearing are liable to be set aside.
• Taxpayers willing to cooperate by depositing part of the disputed tax may be granted a final opportunity to present objections.

Final determinations:

- The impugned order dated 25.04.2024 was set aside.

- The matter was remanded for fresh consideration with directions for effective service and hearing.

- The petitioner was directed to deposit 25% of the disputed tax within two weeks.

- The petitioner was to file a reply within two weeks thereafter.

- The respondent was directed to issue a clear 14-day notice affording personal hearing and decide the matter in accordance with law.