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TMI Blog2025 (3) TMI 111X X X X Extracts X X X X X X X X Extracts X X X X ..... 864, 2867, 2931, 2939, 2956, 2995, 3000, 3012, 3013, 3015, 3027, 3137, 3150, 3171, 3226, 3252, 4277 and 4491 of 2025. THE HON'BLE THE ACTING CHIEF JUSTICE SUJOY PAUL And THE HON'BLE SMT. JUSTICE RENUKA YARA For the Petitioners : Sri Karan Talwar , Sri M.V.J.K.Kumar, Sri M.Uma Shankar , Sri M. Naga Deepak , Sri A.V.A.Siva Kartikeya, Sri Raja Shekar Rao Salvaji, Sri P. Venkata Prasad, learned counsel appearing for Sri Md.Shabaz , Sri Mohd.Mukhairuddin, Sri P. Karthik Ramana, Sri S.Suri Babu ,Smt. S.Rama Lakshmi , Sri Singam Srinivasa Rao , Sri Kailash Nath P.S.S.., Sri Srinarayan Toshniwal, Sri K.P.Amarnath Reddy and Sri Md.Asrar Ahmed, learned counsel appearing for Ms.Yammanuru Siri Reddy, Sri V.Veeresham, Sri Shaik Jeelani Basha, Sri M.Uma Shankar, learned counsel appearing for Sri Puppala Bharat Nandan. For the Respondents : Sri Swaroop Oorilla, learned Special Government Pleader for State Tax assisted by Sri T. Chaitanya Kiran, learned Assistant Government Pleader , Sri Dominic Fernandes, learned Senior Standing Counsel for CBIC. , Sri B.Mukherjee, learned counsel represeintng Sri Gadi Praveen Kumar, learned Deputy Solicitor General of India, Sri C. Vishwanath, learned ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... M/s. Silver Oak Villas (supra) cannot be pressed into service. Reliance is placed on the judgment of learned Single Judge of Gauhati High Court in the case of Dihingia Motors Pvt. Ltd. v. Union of India (2025) 26 CENTAX 79 (Gau.), wherein judgment of this Court in M/s. Silver Oak Villas (supra) was considered. Learned Single Judge of Gauhati High Court in the said judgment opined that the manner in which the Proper Officer should authenticate the show-cause notice or order in so far as other Chapters, the GST Rules are silent except Chapter-III, which deals with 'Registration'. Thus, the view taken in M/s. Silver Oak Villas (supra) is clearly distinguishable and not binding. 5. It is highlighted that statutory Form issued under Chapter-III are in Form GST REG. Chapter-XVIII of the GST Rules deals with 'Demands and Recovery' and Forms under this Chapter are in FORM GST DRC. Rule 142 of Chapter-XVIII of the GST Rules deals with the procedure of issuing demand notice and passing of demand order. Rule 142 (1) (a) deals with serving of summary of notice in Form GST DRC-01 and Rule 142 (5) deals with summary or order to be uploaded electronically in Form GST DRC-07. In both the Rules, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Standing Counsel for CBIC, submits that CBIC is just a formal party and as such no arguments were advanced by him. Rejoinder submissions of the Petitioners:- 11. Sri Karan Talwar submits that the law is well settled that show-cause notices/orders must contain the signature of the officer, who has issued them. In absence of any signature, the document is not authenticated. Reliance is placed on judgments of Supreme Court in Collector of Central Excise, Madras v. M/s. M.M. Rubber and Company 1992 Supp (1) SCC 471 and Kilasho Devi Burman v. Commissioner of Income Tax, W.B., Calcutta (1996) 7 SCC 613. To counter, the argument of Sri Swaroop Oorilla, which is based on Section 160 (1) and (2) of the GST Act, it is submitted that the defect in the show-cause notices are substantive in nature and not merely technical defect. When the impugned show-cause notices and final orders are pregnant with such serious inherent defect, in the light of judgment in the cases of M.M.Rubber and Company and Kilasho Devi Burman (both supra), the said notices and orders cannot be treated to be valid notices/orders. Thus, both Sub-sections (1) and (2) of the Section 160 of the GST Act do not improve the ca ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Rules uses the words 'served' and 'issued' which shows that both are used for different purposes and have different meaning. A notice/order can be said to be validly issued only when it contains signature. The question of service is a different facet. Rule 142 (5) is highlighted to show that notice/order needs to be 'issued' and 'uploaded'. 19. Sri Venkata Prasad, learned counsel representing Sri Md. Shabaz, learned counsel for petitioners in some of the Writ Petitions, submits that the statutory Forms are medium to perform statutory function and therefore, must be strictly followed. 20. Sri Mohd.Mukhairuddin, Sri S. Suri Babu, Smt. S.Rama Lakshmi, Sri Singam Srinivasa Rao, Sri Kailash Nath P.S.S., Sri Srinarayan Toshniwal, Sri K.P.Amarnath Reddy and Md.Asrar Ahmed, learned counsel representing Ms.Yammanuru Siri Reddy, Sri V.Veeresham and Sri Shaik Jeelani Basha, also appeared for Writ Petitioners in some of the cases and borrowed the arguments of learned counsel for the petitioners. 21. Sri Swaroopa Oorilla, learned Special Government Pleader for State Tax, in support of his submissions filed written synopsis. 22. It is noteworthy that the learned counsel for the parties have ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... erable point which deserves serious consideration. 27. Before dealing with the relevant provisions of the GST Act, Rules and Forms on which heavy reliance is placed by learned counsel for the parties, it is apposite to note that this Court in M/s. Silver Oak Villas (supra) has not only considered the judgment of Bombay High Court and Rule 26 (3) of the GST Rules, the Court considered other judgments of different High Courts including Delhi and Andhra Pradesh High Courts and came to hold that in view of judicial precedents, the Court is of considered opinion that the impugned order in the instant case being an unsigned document lost its efficacy under the GST Act and the GST Rules. Thus, conclusion drawn in paragraph No.9 of the judgment in M/s. Silver Oak Villas (supra) shows that it is based on various precedents as well as on the provisions of the GST Act and Rules. 28. In this backdrop, the relevant provisions of GST Act and the GST Rules can be looked into. Rule 26 of the GST Rules deals with 'Method of authentication'. Sub-rule (3) of Rule 26, in no uncertain terms, makes it clear that it talks about notice, certificates and orders issued under the provisions of Chapter-III. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sts a specific column earmarked for the signature, the said requirement becomes a statutory requirement. For this reason, the argument that taxation statute must be strictly interpreted based on the judgment of Supreme Court in Dilip Kumar & Co (supra) is of no assistance to the respondents. Instead it supports the contention of the petitioners. If strict rule of interpretation is applied in view of statutory requirement of existence of signature in the statutory Forms, it cannot be said non-existence of signature will not cause any dent to the notice/order. It is also noteworthy that in paragraph No.6 of counter of respondent No.3, it is pleaded that 'it is settled law that the order of any authority should contain signature of officer concerned who is passing the order'. 31. It is profitable to examine the legal journey on this aspect. The Supreme Court in M/s. M.M. Rubber and Company (supra) opined as under: "12. It may be seen therefore, that, if an authority is authorised to exercise a power or do an act affecting the rights of parties, he shall exercise that power within the period of limitation prescribed therefor. The order or decision of such authority comes into force ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion (1) does not help the respondents in any way. 35. So far, sub-section (2) of Section 160 of the GST Act is concerned, the argument of Sri Swaroop Oorilla is that the respondents have already acted upon the notices in certain cases and filed their reply and therefore notices cannot be invalidated. We do not see any merit in this contention. In none of the cases, it could be pointed out that the petitioners fulfilled the demand or satisfied the recovery. 36. It is apt to take into account Rule 142 which reads thus: 'Rule 142. Notice and order for demand of amounts payable under the Act. - (1) The proper officer shall serve, along with the (a) Notice issued under section 52 or section 73 or section 74 or section 74A or section 76 or section 122 or section 123 or section 124 or section 125 or section 127 or section 129 or section 130, a summary thereof electronically in FORM GST DRC-01, (b) statement under sub-section (3) of section 73 or sub-section (3) of section 74 or sub-section (3) of section 74A, a summary thereof electronically in FORM GST DRC-02, specifying therein the details of the amount payable. (1A) The proper officer may, before service of notice to the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on 64 or section 73 or section 74 or sub-section (12) of Section 75 or section 75 or section 76 or section 122 or section 123 or section 124 or section 125 or section 127 or section 129 or section 130 shall be uploaded electronically in FORM GST DRC-07, specifying therein the amount of tax, interest and penalty, as the case may be, payable by the person concerned. (6) The order referred to in sub-rule (5) shall be treated as the Notice for recovery. (7) Where a rectification of the order has been passed in accordance with the provisions of section 161 or where an order uploaded on the system has been withdrawn, a summary of the rectification order or of the withdrawal order shall be uploaded electronically by the proper officer in FORM GST DRC-08. ( Emphasis Supplied ) 37. A minute reading of this Rule makes it clear like noonday that the Rule mandates and makes it imperative for the Proper Officer to serve the notice/order in the prescribed Forms. At the cost of repetition, the requirement of the Form is to provide signature, name, designation, jurisdiction and address. Thus, the Form DRC-01 and DRC-07 have statutory backing and requirement. We also find substance in the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ly equivalent to no notice..." ( Emphasis Supplied ) 40. We will be failing in our duty, if we do not consider the advisory dated 25.09.2024 reproduced hereinabove on which Sri Swaroop Oorilla has placed heavy reliance. Despite repeated query from the Bench, it could not be pointed out whether this advisory has any statutory backing or at least can be called as an executive instruction issued under any enabling provision. Thus, at best, it is an internal communication between the Departmental Authorities. Curiously, in the latter portion of this advisory also, it is clearly mentioned that the officers need to perform through digital signature authentification in relation to (i) issuance of notice, (ii) issuance of order and (iii) issuance of refund order. In view of statutory requirement of putting signature on the notice and the order, this advisory will not improve the case of the respondents. 41. This is trite that if a law prescribes a thing to be done in a particular manner, the same must be done in the same manner and other methods are forbidden (see Baru Ram v. Prasanni AIR 1959 SC 93 and Commissioner of Income Tax, Mumbai v. Anjum M.H. Ghaswala (2002) 1 SCC 633). Since ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... deference and respect." Thus, what is meant by the principle of "comity" is that courts of one state or jurisdiction will give effect to the laws and judicial decisions of another state or jurisdiction, not as a matter of obligation but out of deference and mutual respect." (Emphasis Supplied) 46. The similar view is taken by Delhi High Court in Commissioner of Income Tax v. SAE Head Office Monthly Paid Employees Welfare Trust MANU/DE/0704/2004 and High Court of Gujarat in Commissioner of Income Tax v. Deepak Family Trust and Ors. MANU/GJ/0311/1993. In SAE Head Office Monthly Paid Employees Welfare Trust (supra), the Division Bench of the Delhi High Court opined as under: "27. When in the tax matters which are governed by all India statute, there is a decision of another High Court on the interpretation of a statutory provisions, it would be a wise judicial policy and practice not to take a different view barring, of course, certain exceptions, like where the decision is sub silentio, per incuriam, obiter dicta or based on a concession or takes a view which it is impossible to arrive at or there is another view in the field or there is a subsequent amendment of the statute ..... X X X X Extracts X X X X X X X X Extracts X X X X
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