Summary: The Kerala High Court, in the case of M/s. Fortune Service & Ors v. Union of India & Ors. [WP (C) Nos. 20656/2024 et al., November 29, 2024], ruled that orders issued under Section 73 of the CGST/SGST Acts must bear a digital or manual signature of the officer to be considered valid. The Court referred to previous rulings, such as Silver Oak Villas LLP and SRK Enterprises, which held that an unsigned order is invalid, even if uploaded by the competent authority. The Court also cited a prior case where the signature was deemed essential for the order’s validity, and the absence of it could not be rectified by Section 160 of the CGST Act. The Court quashed the impugned orders and allowed the authorities to issue fresh orders, with or without a digital signature, ensuring they are signed by the competent officer. This ruling emphasized that unsigned orders do not meet legal requirements, and the omission cannot be rectified by uploading the unsigned order.
Introduction: The Hon’ble Kerela High Court in the case of M/s. Fortune Service & Ors v. Union of India & Ors. [WP (C) Nos. 20656/2024, 22886/2024, 25526/2024, 26672/2024, 26855/2024, 27724/2024, 29264/2024, 29918/2024 dated November 29, 2024] allowed the writ petition, where the issue was whether orders issued under Section 73 of the Central Goods and Service Tax Act, 2017 (“the CGST Act”) / the state Goods and Service Tax Acts, 2017 (“the SGST Act”) must carry the digital or manual signature of the officer passing the order in order to treat the order to be a valid order for the purposes of the CGST/SGST Acts.
The Hon’ble Kerela High Court relied on the case of Silver Oak Villas LLP v. Assistant Commissioner (ST), Begunpet Division Hyderabad [(2024) 17 Centax 442 (Telangana)] which had further relied on decision of the High Court for the State of Andhra Pradesh SRK Enterprises v. Asstt. Commissioner [[2024] 102 GST 450 (82) G.S.T.L. 142 dated November 10, 2023], wherein the Hon’ble Division Bench held that an unsigned order cannot be covered under ―any mistake, defect or omission therein as used in Section 160 of the CGST Act. The said expression refers to any mistake, defect or omission in an order with respect to assessment, re-assessment; adjudication etc and which shall not be invalid or deemed to be invalid by such reason, if in substance and effect the assessment, reassessment etc is in conformity with the requirements of the Act or any existing law. These would not cover omission to sign the order. Unsigned order is no order in the eyes of law. Merely uploading of the unsigned order, may be by the Authority competent to pass the order, would, not cure the defect which goes to the very root of the matter i.e. validity of the order. The Division Bench further relied on the case of A.V. Bhanoji Row v. Assistant Commissioner (ST) [W.P. No. 2830 of 2023 dated February 14, 2023] where a Co-ordinate Bench of this Court has held that the signatures cannot be dispensed with and the provisions of Sections 160 and 169 of CGST Act would not come to the rescue.
The Hon’ble Kerela High Court allowed the writ petition by quashing Impugned Orders and making it clear that it will be open to the competent Authorities in all these cases to upload fresh orders by affixing digital signatures or by serving a copy of the order after affixing manual signature. Since it is possible that in several of the cases, there may have been a change of officer, who passed the original order, fresh orders shall be passed by the competent officer presently in office, after affording a fresh opportunity of hearing to the petitioners in these cases. It is made clear that none of the orders directed to be issued in the terms of this judgment shall be questioned on the ground that they are issued beyond the period of limitation and it will be deemed for all purposes that the fresh orders will relate back to the date on which the original orders (which have been set aside) have been issued.
Our Comments:
Section 160 of the CGST Act governs “Assessment proceedings, etc., not to be invalid on certain grounds”. It states that no assessment, re-assessment, adjudication, review, revision, appeal, rectification, notice, summons or other proceedings done, accepted, made, issued, initiated, or purported to have been done, accepted, made, issued, initiated in pursuance of any of the provisions of the CGST Act shall be invalid or deemed to be invalid merely by reason of any mistake, defect or omission therein, if such assessment, re-assessment, adjudication, review, revision, appeal, rectification, notice, summons or other proceedings are in substance and effect in conformity with or according to the intents, purposes and requirements of this Act or any existing law. Further, the service of any notice, order or communication shall not be called in question, if the notice, order or communication, as the case may be, has already been acted upon by the person to whom it is issued or where such service has not been called in question at or in the earlier proceedings commenced, continued or finalised pursuant to such notice, order or communication.
In pari materia case of M/s SRK Enterprises v. Assistant Commissioner (ST) [Writ Petition No. 29397 of 2023 dated November 10, 2023] held that unsigned order is no order in the eyes of law. Merely uploading of the unsigned order, may be by the Authority competent to pass the order, would, not cure the defect which goes to the very root of the matter i.e. validity of the order.
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