Palakkandy Steels Pvt. Ltd. Vs Assistant Commissioner of State Tax (Kerala High Court)
The Kerala High Court considered appeals against a judgment of the learned Single Judge concerning orders issued under Section 73 of the CGST Act and SGST Act. The Single Judge had quashed the orders because they did not bear the digital or manual signatures of the issuing Officers. However, the Single Judge permitted the Officers to upload the same orders after affixing digital signatures or serve copies bearing manual signatures. Where the incumbent Officer had changed, the successor was also permitted to issue the same orders after providing an opportunity of hearing to the appellants. The Single Judge further directed that such orders could not be challenged on limitation grounds.
The appellants contended that the notices preceding the impugned orders should also have been quashed because they too lacked digital or manual signatures. They further argued that once the orders had been quashed, the same orders could not be reissued merely by curing the signature defect, whether by the original Officer or a successor. They also challenged the protection granted against limitation.
The State opposed the appeals, submitting that the Single Judge had treated the absence of signatures as only a technical defect and had not examined the merits or found the orders illegal. According to the State, the Officer could therefore proceed from the stage at which the orders had been issued.
The Division Bench noted that the notices and orders admittedly lacked either digital or manual signatures. It also noted that the official respondents had not appealed against the quashing of the orders and that only the assessees had approached the Division Bench. The Court therefore examined whether the notices should also have been quashed and whether the Officers could be permitted to upload the same quashed orders after adding signatures.
The Division Bench was not persuaded to uphold several directions issued by the Single Judge. It observed that when a Writ Court quashes an order, the authorities may be permitted to issue fresh orders in accordance with law, but cannot ordinarily be permitted to revise the same quashed orders merely by curing defects. The Court considered this particularly problematic where the incumbent Officer had changed and the successor was authorised to issue the same order after hearing the appellants.
The Division Bench also observed that the issue concerning protection from limitation could present a larger problem under the statutory scheme, but held that this question would not require consideration in view of the directions ultimately issued.
Accordingly, the High Court allowed the appeals and vacated the directions permitting the Officers or their successors to issue the same orders that had already been quashed. At the same time, the Court granted liberty to the authorities to issue fresh orders in terms of law, after following due procedure.
The Court expressly clarified that it had not examined the merits of the contentions against the notices, leaving those contentions open.
FULL TEXT OF THE JUDGMENT/ORDER OF KERALA HIGH COURT
The learned Single Judge, in the impugned judgment, has quashed the orders called into question – which are issued by the competent Authorities under Section 73 of the Central Goods and Services Tax Act, 2017 and the State Goods and Services Tax Act, 2017 (CGST Act/SGST Act) – on the ground that they did not contain the digital or manual signature of the Officer issuing or passing them.
2. The learned Single Judge, thereafter, allowed the uploading of the same orders by the Officer, after affixing a digital signature, or by serving a copy of the order after affixing a manual signature; further clarifying that, if there is any change in the incumbent, the Officer presently in office, after affording an opportunity of being heard to the appellants, can issue the said orders. The learned Judge further held that the orders so issued cannot be challenged on the ground that they were issued beyond the period of limitation.
3. Sri. Anil D. Nair, learned Senior Counsel – instructed by Sri. Aditya Unnikrishnan – appearing for the appellants in both these cases, argued that the learned Judge committed an error in not quashing the notices preceding the impugned orders because, they were also not digitally or manually signed. He then contended that, once the orders stood quashed, the learned Judge could not have allowed the very same to be uploaded by either the same Officer or by a different Officer, and that this is not authorized by the Act or the Statutory Scheme. He concluded, saying that the protection given to the respondents – that the orders so issued cannot be challenged by his clients on the ground of limitation exceeds the limits of jurisdiction and is beyond the powers of this Court.
4. Sri. Sudheesh Kumar – learned Special Government Pleader, refuted the afore submissions, saying that the learned Single Judge found that there was only a technical defect in the orders and did not enter into the merits of the same, or find that they were illegal or unlawful. He argued that, in such circumstances, the learned Judge was without error in allowing the Officer to act as per law from the stage at which the orders were issued. He prayed that these Appeals be, therefore, dismissed.
5. We are afraid that we cannot find the factual situation to be as innocuous as is sought to be presented before us by the learned Special Government Pleader.
6. Admittedly, the notices and the orders were not signed by the Officer who issued them, either digitally or manually. This was so found by the learned Single Judge, who thus quashed the orders, but reserved liberty to the Authorities as above mentioned. It is pertinent that the official respondents have not filed any Appeals and that it is only the assessees who have come before us.
7. Obviously, therefore, what we require to verify is whether the learned Single Judge ought to have quashed the notices also; and further whether, after the orders were so quashed, the Officer could have been allowed to upload the same with fresh signatures. The situation is exacerbated by two further directions, namely, that if the incumbent in the office has changed, the successor can issue the same order after hearing the appellants; and further that even such orders cannot be called into question on the ground of limitation.
8. We are not persuaded to accept many of the directions in the impugned judgment for the reasons we will presently state.
9. As said above, the quashing of the impugned orders has not been appealed against by the official respondents. They cannot, therefore, be heard to speak against the same.
10. As far as the appellants are concerned, there appears to be a situation where the impugned orders are set aside, but are to be served again after being signed by the Officer, or by the successor in office. We do not understand how this could have been done because, normally, when a Writ Court quashes an order, the Authorities can certainly be allowed to issue fresh orders in terms of law, but not to revise the same by curing the defects, presuming such to be curable.
11. This is more so in the case where the incumbent may have been changed in office; but the learned Single Judge still authorizes the successor in office to pass the same order, after hearing the appellants. We cannot fathom the rationale behind this because, if the successor in office is to issue the same order, then why should the appellants be heard at all, since it would be an appellate formality and nothing more.
12. As regards the protection of the orders ordered to be issued from the rigour of limitation, this may present a much larger problem, particularly under the Statutory Scheme. However, in view of the directions we propose to issue, this may not be relevant.
For the afore reasons, we allow these Appeals and vacate the directions in the judgment to the extent to which it allows the Officers or Successors in Office to issue the same orders as have been quashed; but leaving liberty to them to issue fresh orders in terms of law, after following due procedure.
We clarify that we have not entered into the merits of the contentions against the notices; and that they are left open.
