Section 169(1) of the CGST Act, 2017 outlines the methods through which notices can be served by the department, such as personal delivery, registered post, email, or publication. If these methods are impractical, notices can be affixed at the last known address. Section 169(2) deems a notice validly served once communicated through these methods. Rule 142(5) of the CGST Rules requires notices under certain sections to be uploaded on the common portal, leading to legal debates about whether this rule overrides the broader provisions of Section 169(1). Judicial decisions, such as in Shri Sham Baba Oils and Pushpam Realty, have clarified that uploading on the common portal is necessary for valid service of notice, even if other methods are used. Additionally, courts have ruled in cases like Anhad Impex and East Coast Constructions that uploading notices in improper sections of the portal or failure to provide physical copies does not meet the requirements of valid communication. The principle of natural justice requires that taxpayers receive notice in a manner that allows them to respond adequately. Therefore, only notices uploaded in the correct section of the common portal are considered valid.
- Section 169(1) of the CGST Act, 2017 prescribes different ways of service of notice by the department which includes: –
1. Giving tendering directly to taxable person or, his manager or, his authorized representative or, an advocate or, tax practitioner or, regular employee or, any adult member of the family.
2. By the way of registered post or, speed post or, courier with acknowledgement at the address of the person or, his authorized representative.
3. By sending communication to his e-mail.
4. By making it available on common portal.
5. By Publishing it in newspaper.
6. If none of the modes is practicable, by affixing it at his last known address.
- Further Section 169(2) of the CGST Act, 2017 states that a notice shall deemed to be served if it is tendered, published or, affixed in such a manner as provided in above sub Section.
- Service of notice became vital section in GST Law. It indicates department’s communication. Almost 14 different ways has been prescribed so far in which department can serve the notice to taxpayer. Now, its importance can be seen from that fact that period of limitation for any appeal will be counted from this communication only. Having the knowledge of how department can serve notice is therefore very important and crucial.
- You may have good case on merit but, being unaware of communication provisions can simply elapse the limitation period due to which you might lose your vital right to appeal against the wrong order.
- Rule 142(5) of the CGST Rules, 2017: – Order under Section 73, Section 74, section 76, section 129 or, section 130 of the CGST Rules, 2017 shall be uploaded electronically on the common portal.
- Rule 142(5) of the CGST Rules, 2017 Vs Section 169(1) of the CGST Act, 2017: –
1. Above sub Rule to the Rule 142 led to a debate that whether notice is to served compulsorily through common portal or, can be served by any modes as specified in section 169(1).
2. According to the General rule, a rule cannot override the section. It simply means that section 169(1) should have overriding effect on Rule 142(1). Let us refer to some of the judicial decisions: –
♦ In case of Shri Sham Baba eligible Oils Vs Chief Commissioner (HC), Hon’ble court opined that Rule 142(5) specifically contain the phrase “uploaded electronically on common portal” and email shall not be equated as uploaded electronically uploaded on portal. Therefore, held that, email is not a valid mode of service and order to be uploaded on common portal.
♦ In case of Pushpam Realty Vs the state Officer (HC), wherein notice was served by the way registered post but not uploaded on the portal due to the technical glitches. Hon’ble court held that additional time shall be provided to the petitioner and further order that notice to be uploaded on common portal as and when technical glitches are resolved.
3. From the above judicial decision, question that might comes to our mind is: –
♦ Is communication other than uploaded on common portal are secondary in nature?
♦ Do Rule 142(5) has overriding effect on Section 169(1)?
♦ Why section 169 is being connected to Rule 142?
- Notice uploaded on “View additional Notices & order” instead of “notices & order” is valid communication?
1. In case of Anhad Impex Vs Assistant commissioner (HC), it was held that merely uploading notice & order on additional notices tab instead of notices tab is not a valid means of communication
2. In case of East Coast constructions Vs Assistant commissioner (HC), Hon’ble court stated that why revenue department has uploaded notice on additional notices tab, when notice tab has already been provided. Further, held that petitioner deserve a fair chance as petitioner fail to acknowledge the notice in additional notices tab.
3. In Case of Jack communication(p) ltd Vs Deputy commercial Tax officer (HC), Petitioner failed to receive any physical copy of notice although the notice was uploaded on common portal but under “View additional notices & order”. Hon’ble court noted that notice was uploaded on common portal under additional notice Tab and notice was not physically served due to which petitioner was unaware of the said notice. Therefore, held that no order can be passed as notice communication was not valid.
- Taking a note of all latest judicial decision, it can be said that writ courts are providing relief to the Taxpayer who didn’t receive the notice although it was served on part of department. Department cannot take plea under section 169 if principal of natural justice is violated. Notice physically served physically or, served by the email but, not uploaded on common portal is not valid communication.
Thus, looking at present scenario one can say only notice that has been uploaded on common portal in “notices Tab” is only valid communication.
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