Posting GST order on Portal is not “communication” of order as per sec 107 of CGST Act, Madras High Court
In the recent case of Sharp Tanks and Structurals Private Limited vs The Deputy Commissioner (GST) (Appeals) MADRAS HIGH COURT held that, a statute employs two different expressions, they denote different meanings. The expressions “served” ( for sec 169) and “communicated” (For sec 107)are not synonymous. Order uploaded on the portal done not mean the expression “communicate”. And therefore time limit of 3 moth for filing of appeal will start from the date of effective communication of order and not from service of order.
Fact of the case:- petitioner is registered taxa payer and registered under state Jurisdiction. Surprise inspection was conducted on the petitioner’s business premises and SCN was issued and same is duly replied. However written submissions and submissions during personal hearing was not considered and order confirming demand along with interest and penalty was passed.
Order passed by the adjudicating authority were only uploaded in the GSTN Portal. Since the petitioner was in the dark, he missed the time line for filing the appeals. And hence appeal got rejected as appeal filed after prescribed time limit as per sec 169.
Court observation.
When Section 169 (1) of the Act prescribes alternative modes of service and the said provision is still holding the field, it is not for court to declare that uploading in the portal is not service. But court can definitely hold that in the particular facts of a case, the authority was obliged to have resorted to the other modes of service apart from uploading the notice/order in the portal.
A careful reading of the provision of Sec 107 leads me to conclude that the limitation will start running from the date on which the order or decision is communicated to the assessee. The provision does not say that limitation should be calculated from the date of service of the order on the assessee. Section 169 talks about service. Of course, it talks about serving not only decision, order, summon or notice but also other communication. When a statute employs two different expressions, they denote different meanings. The expressions “served” and “communicated” are not synonymous.
the expression “communicate” has been interpreted to mean sharing of knowledge by one with another. Communication is always a bipartite affair. Service will become communication if the authority reaches out to the assessee. This can be done by giving or tendering directly or by a messenger including a courier to the addressee or sending by registered post or speed post. If the authority sends the order to the last known address of the assessee, it would suffice. If the assessee could not be found or he refuses to accept service, the authority need not do anything more. The expression “communication” should be understood in this sense. But mere uploading in the portal by no stretch of imagination would satisfy the requirement of communicating to the assessee. The statute obliges the authority to communicate to the assessee. There is no obligation cast on the assessee to access the portal.
Conclusion by Court
the order had only been uploaded in the portal and not communicated to the assessee, the limitation has not started running for the writ petitioner. In the case on hand, the assessee appears to have recently downloaded the impugned orders from the portal for the purpose of filing this writ petition. But that would not constitute communication of the order to the writ petitioner. Court, directed the second respondent to communicate the impugned order to the writ petitioner and it is open to the writ petitioner to file appeal in terms of Section 107 of the Act. Since the order has not been communicated as per law, it cannot be enforced till such communication.
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