2025 (5) TMI 1888 - HC - GST

Seeking for the issuance of a Writ of Certiorari to call for the records - issuance of the impugned order without proper service of SCN - violation of principles of natural justice - HELD THAT - In the absence of service of the original show cause notice the petitioner was not able to reply to the same. Assuming that sending notices by uploading in the portal is sufficient service when the Officer who was sending the repeated reminders received no response from the petitioner he ought to have applied his/her mind and explored diligently the possibility of sending notices by other modes prescribed in Section 169 of the GST Act. Mere uploading the notice repeatedly without ensuring their receipt by the petitioner cannot be considered as effective service. Such mechanical compliance does not serve any useful purpose and the same will only lead to multiplicity of litigations wasting not only the time of the Officer concerned but also the precious time of the Appellate Authority / Tribunal and this Court as well. Thus when there was no response from the tax payer to the notice uploaded in the portal the Officer should have sent the notice through RPAD which would have served the purpose. This Court is of the view that the impugned assessment order passed without affording any opportunity of personal hearing to the petitioner confirming the proposals contained in the show cause notices is illegal and unsustainable. The impugned order passed by the first respondent dated 14.08.2024 is set aside - petitioner is directed to deposit 25% of the disputed tax which the petitioner voluntarily accepts to pay within a period of two weeks from the date of receipt of a copy of this order - Petition allowed by way of remand.

Summary

The core legal questions considered in this judgment revolve around the validity and legality of the impugned assessment order issued under the GST Act, specifically:

• Whether the issuance of the impugned order without proper service of the show cause notice to the petitioner complies with the requirements of natural justice and the GST legal framework.
• Whether uploading the show cause notice on the GST portal alone constitutes effective service on the petitioner under the GST Act.
• Whether the assessing authority fulfilled its obligation to ensure proper communication and opportunity for hearing before passing the final assessment order.
• The appropriateness of remanding the matter for fresh consideration and the conditions under which such remand should be granted.

Issue-wise Detailed Analysis

1. Validity of Service of Show Cause Notice

Relevant Legal Framework and Precedents: The GST Act mandates issuance of show cause notices under Section 73 for recovery of tax dues. Section 169 of the GST Act prescribes modes of service of notices, including physical service methods such as Registered Post with Acknowledgment Due (RPAD), apart from electronic means. Principles of natural justice require that the assessee be given effective notice and opportunity to respond before adverse orders are passed.

Court's Interpretation and Reasoning: The Court examined whether uploading the show cause notice on the GST portal alone suffices as effective service. It noted that the petitioner claimed the notice went unnoticed because it was not served by any other means. The Court observed that mere mechanical uploading of notices on the portal, without ensuring actual receipt or response, does not constitute effective service. The Court emphasized that when repeated reminders sent via the portal elicited no response, the assessing officer was obligated to explore alternative service methods prescribed under Section 169, such as RPAD, to ensure the petitioner received the notice.

Key Evidence and Findings: The petitioner did not receive any physical or alternative form of notice and was unable to file a reply. The respondent's reliance solely on portal uploading was found insufficient. The lack of personal hearing opportunity further compounded the deficiency.

Application of Law to Facts: The Court applied the statutory provisions and principles of natural justice to conclude that the impugned order was passed without effective service of the show cause notice, rendering the order illegal and unsustainable.

Treatment of Competing Arguments: The respondent contended that uploading on the portal was sufficient. However, the Court rejected this argument on the ground that such service must be effective and acknowledged, especially when no response is received from the taxpayer.

Conclusion: The Court held that the impugned assessment order passed without proper service of notice and opportunity of hearing violates statutory requirements and principles of natural justice.

2. Opportunity of Personal Hearing and Passing of Impugned Order

Relevant Legal Framework and Precedents: The GST law and administrative principles mandate that before passing an adverse order, the taxpayer must be given an opportunity of personal hearing to present their case.

Court's Interpretation and Reasoning: The Court found that the impugned order was passed without affording any personal hearing to the petitioner. Given that the petitioner was unaware of the show cause notice due to defective service, the absence of hearing compounded the procedural impropriety.

Key Evidence and Findings: The petitioner's inability to file a reply and absence of personal hearing opportunity were established facts.

Application of Law to Facts: The Court applied the principle that natural justice requires an opportunity to be heard before adverse action and concluded that the impugned order was illegal on this ground as well.

Treatment of Competing Arguments: The respondent did not dispute the absence of personal hearing but relied on the validity of the portal notice. The Court found this insufficient to cure the procedural lapse.

Conclusion: The order is unsustainable for failure to provide personal hearing.

3. Remand for Fresh Consideration and Conditions for Deposit of Tax

Relevant Legal Framework and Precedents: Courts have discretionary power to set aside administrative orders and remand matters for fresh consideration, especially where procedural irregularities exist. Deposit of a portion of disputed tax is often a condition for such remand to balance interests.

Court's Interpretation and Reasoning: Considering the petitioner's willingness to deposit 25% of the disputed tax voluntarily, the Court found it appropriate to set aside the impugned order and remand the matter to the respondent for fresh adjudication. The Court directed the petitioner to deposit the said amount within two weeks, file a reply with supporting documents, and mandated the respondent to issue a clear 14-day notice affording personal hearing before passing a fresh order in accordance with law.

Key Evidence and Findings: The petitioner's submission of readiness to deposit 25% of the tax was a key factor in the Court's decision to grant relief on remand.

Application of Law to Facts: The Court balanced the interests of the revenue and the petitioner by conditioning remand on partial deposit and ensuring procedural safeguards on reconsideration.

Treatment of Competing Arguments: The respondent fairly agreed to the petitioner's proposal, facilitating an amicable resolution.

Conclusion: The matter was remanded with specific directions to ensure compliance with procedural requirements and fairness.

Significant Holdings

"Mere uploading the notice repeatedly without ensuring their receipt by the petitioner cannot be considered as effective service. Such mechanical compliance does not serve any useful purpose and the same will only lead to multiplicity of litigations, wasting not only the time of the Officer concerned, but also the precious time of the Appellate Authority / Tribunal and this Court as well."

"When there was no response from the tax payer to the notice uploaded in the portal, the Officer should have sent the notice through RPAD, which would have served the purpose."

"The impugned assessment order passed without affording any opportunity of personal hearing to the petitioner, confirming the proposals contained in the show cause notices is illegal and unsustainable."

Core principles established include:

• Effective service of show cause notices under the GST Act requires more than mere uploading on the GST portal; alternative modes prescribed under the statute must be employed if no response is received.
• Natural justice mandates an opportunity of personal hearing before passing adverse orders under the GST regime.
• Procedural lapses in service and hearing can render assessment orders illegal and liable to be set aside.
• Courts may condition remand of such matters on partial deposit of disputed tax and compliance with procedural safeguards on reconsideration.

Final determinations:

• The impugned order dated 14.08.2024 was set aside as illegal and unsustainable.
• The matter was remanded to the respondent for fresh consideration after the petitioner deposits 25% of the disputed tax and files a reply.
• The respondent was directed to issue a clear notice affording personal hearing before passing any fresh order in accordance with law.