Mode of Delivery of Show Cause Notice

[CA Akash Phophalia]

Introduction

Concept of show-cause notice finds its roots in the birth of laws. The system of issuing show-cause notice is prevailing in all the legal frameworks throughout the world in the same manner or the other following the principle of natural justice. The importance of delivery of show-cause notice is equally important. In this article the author aims to highlight the importance of proper mode of servicing of show cause notice through a recent decision held by Allahabad high Court in the case of Kashi Bartan Bhandar v State of UP 2018 (11) TMI 556 - ALLAHABAD HIGH COURT

Meaning of Show-cause notice

Show cause notice means an order issued by a Court, Competent Authorities or an Organization asking an individual or a group of people to explain or to "show cause" in writing as to why the disciplinary action should not be taken against the individual or the group of people involved in certain incidents, misconduct, poor performance and wrongdoing.  Order to show cause is issued by the authority or the Management after reviewing the entire incident and if finds that the person accused or may involve in wrongdoing and it is also to give a fair chance of hearing him and his explanation towards his/her actions and so avoid disciplinary action.

Facts

In order to understand the importance of proper mode of servicing of show cause notice lets first understand the provisions mentioned in Section 169 of the act regarding servicing of show cause notice, which reads as under:-

“Section-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.

(2) 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 manner provided in sub-section (1).

(3) 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.”

Thus Section 169 of the act prescribes various modes of serving of notice to the assessee and if any of the modes as mentioned in (a) to (e) of sub-section(1) of Section 169, supra, then only the last resort as mentioned in (f) above shall be resorted.

In the given case the show-cause notice was served by the proper officer through affixation. But, there was nothing on record that had been brought to notice to establish the time, date and place and the manner in which service by affixation was resorted to.

Discussion and Findings

The notice under the Act is required to be served in accordance with the provisions of Section 169 of the Act which provides that it can be served by giving or tendering it directly or by messenger to the person concerned or to a person regularly employed by him in connection with his business or to an adult member of the family residing with him; or by registered or speed post or courier with acknowledgement due by sending at the last known place of business or residence of the person concerned; or by sending a communication at its email address provided at the time of registration and 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 person concerned has last resided or carried business; or if none of the modes aforesaid is practicable, by affixing it at some conspicuous place, of his last known place of business or residence.

It was held by the court that the petitioner was not served with any show-cause notice before passing of the impugned order and service through affixation could not have been resorted to in the facts and circumstances of the case. Hence the impugned order is in violation of the principles of natural justice.

Conclusion

Where the law provides for the manner of serving of show cause notice, the department has to abide by the norms stated in the law. It cannot by-pass the mechanism of principles of natural justice else the entire proceedings will go against the department. This principle is also enumerated in various other judicial disciples and is holding its significance at all the times.

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CA Akash Phophalia

9799569294

ca.akashphophalia@gmail.com