TaxTMI 
TaxTMI 
One of the finest drafted sections in the CGST Act is Section 169. This is a highly detailed article on Section 169 wherein each and every connected aspect shall be discussed coherently. To start with, let us go through the section which reads as 'Service of notice in certain circumstances. 169 (1) Any decision, order, summons, notice or other communication under this Act or the rules made thereunder shall be served by any one of the following methods, namely:-
(a) |
| by giving or tendering it directly or by a messenger including a courier to the addressee or the taxable person or to his manager or authorised representative or an advocate or a tax practitioner holding authority to appear in the proceedings on behalf of the taxable person or to a person regularly employed by him in connection with the business, or to any adult member of family residing with the taxable person; or |
(b) |
| by registered post or speed post or courier with acknowledgement due, to the person for whom it is intended or his authorised representative, if any, at his last known place of business or residence; or |
(c) |
| by sending a communication to his e-mail address provided at the time of registration or as amended from time to time; or |
(d) |
| by making it available on the common portal; or |
(e) |
| by publication in a newspaper circulating in the locality in which the taxable person or the person to whom it is issued is last known to have resided, carried on business or personally worked for gain; or |
(f) |
| if none of the modes aforesaid is practicable, by affixing it in some conspicuous place at his last known place of business or residence and if such mode is not practicable for any reason, then by affixing a copy thereof on the notice board of the office of the concerned officer or authority who or which passed such decision or order or issued such summons or notice. |
(2) Every decision, order, summons, notice or any communication shall be deemed to have been served on the date on which it is tendered or published or a copy thereof is affixed in the manner provided in sub-section (1).
(3) When such decision, order, summons, notice or any communication is sent by registered post or speed post, it shall be deemed to have been received by the addressee at the expiry of the period normally taken by such post in transit unless the contrary is proved'.
This section has been drafted so beautifully in such a manner that there is one and only one interpretation which is possible and there is absolutely no scope at all for any ambiguities which we shall examine from section 169 itself.
Part one. Sub Section 1. Kindly refer to clause (f) which starts with if none of the modes aforesaid is practicable, exercise this option. This gives me the message that the best option provided as per law is clause a which is physical delivery. Only when it is impracticable, exercise clause (b) which is speed post. Only when a as well as b becomes difficult go for clause ( c ) which is e mail. In case (a), (b) as well as ( c ) all become impossible, go for (d) which is making it available on GST portal.
Almost in 90 % of the cases (if not more) Show Cause Notices are invariable posted only in the portal by totally disregarding the first three options. The best part is that these show cause notices are deliberately posted under additional notices column which is normally not viewed by the taxpayer.
Several high courts have on so many occasions have already ruled that communication must not only be in line with sufficient compliance of section 169 but it should also be effective. Such orders have categorically held that posting of SCN on portal which when it is known to the officer that it is unnoticed by taxpayer as no reply is received in 30 days, instead of trying other options, OIO is passed without affording the opportunity of personal hearing in gross violation of section 75(4).
To strengthen the arguments, I put the following three questions to all connected therewith.
- If clause ( d) is sufficient, then what is the need for the clauses a, b, c, e as well as f ?. Be that as it may.
- What is the need for the legislature to put an order of one to six?. Though the wordings say any one mode, had the intention of the legislature been that posting in portal is sufficient compliance, the legislature might have fixed clause (d ) as clause (a). It is because, the legislature has carefully thought of the possible behaviors of the field formation and that is why the most viable option of physical delivery was kept as the first option.
- Where is the justification to violate section 75 (4) by simply stating that the SCN was posted in the portal and taxpayer failed to notice the same ? . In my view, if at all the department is comfortable only in exercising the option of Clause (d), as the first option, fine. Go ahead. But when SCN is not replied in 30 days, kindly exercise one more option available under section 169 (1) as above.
Part two. Sub section 2. This is the most important sub section amongst all 3. The sub section 1 only offers six different methods for serving. Compliance of sub section 1 would mean only the compliance of that sub section only. If at all section 169 is to be complied, all the three sub sections must be complied simultaneously. This is more so as the word 'or' which available five times in sub section 1 is not available at the end of that sub section. In the simplest manner, as the word or is not appearing at the end of sub section 1 or 2, it is to be interpreted as sub section 1, 2 and 3 must be complied simultaneously. Going further, kindly note the words that have been used after considerable efforts. The most important word in sub section 2 is 'served'. This clause is basically to decide the date on which it was effectively served. In case the SCN is posted only in the portal and when goes un-noticed by taxpayer, sub section 2 is not complied as served means effectively served which is the date on which the SCN is noticed by the taxpayer.
Part three. Sub section 3. This sub section is only of clarificatory nature and that too only when the option under 169 (1) (b) is exercised. This sub section is not applicable when options other than b are exercised.
Hence, it may be concluded that sub sections 1 as well as 2 must be complied simultaneously and in order to ensure that this happens, it is a must that communication under sub section 1 must be effective. When a SCN is posted in portal, and the same is noticed by taxpayer, the matter ends and there is no need for this article.
The trigger for this article today is the decision of the division bench of the Orissa High Court on 25/06/2026 as reported in M/s. SKM Infraventure Private Limited Versus The CT & GST Office, Keonjhar Circle and others. - 2026 (7) TMI 76 - ORISSA HIGH COURT.
The operative portion reads as '6. The moment the order is uploaded in the common portal and the returns are statutorily required to be uploaded on such portal on periodical
intervals, it is inconceivable that there was lack of knowledge of said order to the Petitioner. The order was passed as far back as in the year 2023 and the challenges made to the same in the instant writ petition, filed in the year 2025, is without any explanation except that said order was not within the knowledge of the Petitioner'.
With due respects to the high court, it is submitted that the case was spoiled by the taxpayer as per the chronology listed below:
SCN issued on 05/09/2022. OIO passed on 10/08/2023. Period involved is 01/07/2017 to 31/03/2018 and section 74 was invoked. The taxpayer approached High Court by way of writ only during 2025 quoting that the taxpayer came to know about the OIO only after bank account was attached.
This argument was rejected because, the taxpayer has been filing monthly GST returns regularly and as such the taxpayer's claim that the SCN or OIO was unnoticed for years was not accepted.
It was absolutely possible for the taxpayer for getting a favourable order from the same bench, had the taxpayer noticed at least the OIO in time and preferred first appeal. Now, only due to the huge delay of more than three years in acting against the SCN/OIO, the case went in favour of the Revenue.
Take away: As GST is in its 10th year and as GSTAT is working fine, it is for the taxpayer as well as the tax professionals to take care of all the required procedures in time and writs fail now in majority of the cases due to alternate remedies.