Case Law Details
Fortune Service Vs Union of India (Kerala High Court)
Kerala High Court held that orders issued u/s. 73 of the CGST/SGST Acts 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. Accordingly, writ allowed and order quashed.
Facts- The short question arising in these writ petitions is whether orders issued under Section 73 of the CGST/SGST Acts 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.
Conclusion- Held that these writ petitions are allowed by quashing the impugned orders and making it clear that it will be open to the competent among the respondents 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, I make it clear that, 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.
FULL TEXT OF THE JUDGMENT/ORDER OF KERALA HIGH COURT
The short question arising in these writ petitions is whether orders issued under Section 73 of the CGST/SGST Acts 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.
2. The issue appears to be covered in favour of the petitioners in these writ petitions by the recent Division Bench judgment of the Telangana High Court in Silver Oak Villas LLP V. Assistant Commissioner (ST), Begunpet Division Hyderabad [(2024) 17 Centax 442 (Telangana)], where the Court held as follows:-
‘’5. It is at this juncture relevant to take note of the recent decision of the High Court for the State of Andhra Pradesh in W.P.No.29397 of 2023/SRK Enterprises V. Asstt. Commissioner (ST) [2023] 157 taxmann.com 93/[2024] 102 GST 450 (82) G.S.T.L. 142/(2023) 13 Centax 60(AP) and stood decided on 10.11.2023, wherein the Hon’ble Division Bench of the Andhra Pradesh High Court had under similar circumstances in paragraph Nos.7 to 12 held as under:
7. On consideration of the submissions advanced and the legal provisions, we are of the view that Section 160 of CGST Act 2017 is not attracted. An unsigned order cannot be covered under ―any mistake, defect or omission therein as used in Section 160. 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, in our view, not cure the defect which goes to the very root of the matter i.e. validity of the order.
8. We are of the further view that Section 169 of CGST Act 2017 is also not attracted. Here, the question is of not signing the order and not of its service or mode of service.
9. In the case of A. V. Bhanoji Row vs. Assistant Commissioner (ST) in W.P.No.2830 of 2023 decided on 14.02.2023, upon which reliance has been placed by learned counsel for the petitioner (Ex.P6), 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.
10. Paragraph 6 of A. V. Bhanoji Row (supra) is reproduced as under:- ―
6. A reading of Section 160 of the Act makes it very much clear and candid that the safeguards contained therein cannot be made applicable for the contingency in the present case. Section 169 of the Act, which deals with the service of notice, enables the department to make available any decision, order, Summons, Notice or other communication in the common portal. In the guise of the same, the signatures cannot be dispensed with. In the considered opinion of this court, the aforesaid provisions of law would not come to the rescue of the respondent herein, for justifying the impugned action.
11. The writ petition deserves to be allowed on the first ground itself.
12. Consequently, we are not entering into the merits of the second ground, leaving it open to the concerned authority to consider, if the ground as in the impugned order, is different than the one contained in the show cause notice, and if it is so, it shall be open for the Authority to issue fresh notice, if it is proposed to proceed on such ground. However, at this stage, learned counsel for the petitioner submits that the petitioner has submitted reply to the show cause notice dated 31.01.2023 and he shall also file additional reply, with respect to the alleged new ground as in the impugned order of his own, within a period of four (04) weeks from today.
6. The similar view was also taken in yet another writ petition by the Hon’ble Division Bench of the Andhra Pradesh High Court in A.V. Bhanoji Row V. Asstt. Commissioner (ST) [W.P.No.2830 of 2023 dated 14.02.2023], wherein also the Hon’ble Division Bench had reiterated the same view wherein paragraph Nos.6 and 7 has held as under:
6. A reading of Section 160 of the Act makes it very much clear and candid that the safeguards contained therein cannot be made applicable for the contingency in the present case. Section 169 of the Act, which deals with the service of notice, enables the department to make available any decision, order, 4 Summons, Notice or other communication in the common portal. In the guise of the same, the signatures cannot be dispensed with. In the considered opinion of this court, the aforesaid provisions of law would not come to the rescue of the respondent herein, for justifying the impugned action.
7. For the aforesaid reasons, this Writ Petition is allowed, setting aside the impugned order of the 1st Respondent, dated 23-11-2022 and the DRC-07 notice, dated 23-11-2022 for the tax period 2017-18,2018-19 and 2019-20, as well as the show cause notice dated 22-10-2022 and DRC-01 notice, dated 22-10-2022 issued by the 1st Respondent and uploaded in the GST common portal. However, this order will not preclude the respondents from proceeding in accordance with law, in the light of the observations made Supra. There shall be no order as to costs.
8. Yet another matter came up before the High Court of Delhi in W.P.No.2872 of 2023, which stood decided on 03.02.2023 [2023 (78) G.S.T.L. 232(Del.) = (2023) 7 Centax 174 (Del.)], wherein in paragraph Nos.14 to 17 the High Court of Delhi has held as under:
Concededly, the impugned order cannot be sustained as it is unsigned. This issue is covered by the decision of a coordinate Bench of this Court in Railsys Engineers Private Limited & Anr. V. The Additional Commissioner of Central Goods and Services Tax (Appeals-II) & Anr. W.P.(C) 4712/2022, decided on 21.07.2022.:
An unsigned notice or an order cannot be considered as an order as has been held by the Bombay High Court in Ramani Suchit Malushte vs. Union of India and ors. W.P.(C) 9331/2022, decided on 21.09.2022.
In view of the above, the impugned order dated 07.06.2022 is set aside.
Since it is stated that the show cause notice dated 06.02.2021 should be confirmed to the discrepancies as pointed out in the notice dated 01.01.2021, this Court does not consider it apposite to set aside the said show cause notice but to provide an opportunity to the petitioner to file a reply to the notice dated 01.01.2021 and 06.02.2021. The said reply be filed within a period of two weeks from today.”
I am in respectful agreement with the findings of the Telangana High court in Paragraph Nos.5, 6 and 8 of the judgment inSilver Oak Villas LLP (Supra). However, I am of the opinion that the reference to Rule 26(3) of the CGST Rules in the said judgment may not be apposite as that Rule refers specifically to issues of registration.
3. In the light of the above, these writ petitions are allowed by quashing the impugned orders and making it clear that it will be open to the competent among the respondents 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, I make it clear that, 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.
Any other contention (other than the contention that the orders are invalid for lack of digital/manual signature) will be left open.
The writ petitions are ordered accordingly.
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