2023 (12) TMI 156 - HC - GST

Unsigned GST adjudication order validity-signature omission not curable u/s160 or s.169; order set aside, fresh order directed.

The dominant issue was whether an unsigned GST adjudication order could be sustained by treating the defect as curable under s.160 or s.169 of the CGST ... Unsigned order is no order - validity of administrative orders - Section 160 - non curative nature for omission to sign - Section 169 - modes of service not a substitute for signature - principles of natural justice - opportunity to reply to new groundsUnsigned order is no order - validity of administrative orders - The impugned order is unsigned and therefore invalid. - HELD THAT: - The Court held that omission to sign an order goes to the root of its validity and an unsigned order cannot be treated as a subsisting order. Merely uploading an unsigned document by the authority competent to pass orders does not cure the defect. The defect of non signature is not a peripheral mistake or formal omission that may be disregarded; it renders the order invalid and unenforceable. [Paras 7, 13]Impugned order set aside on the ground that it is unsigned; writ petition allowed in part.Section 160 - non curative nature for omission to sign - Section 169 - modes of service not a substitute for signature - Sections 160 and 169 of the CGST Act do not validate or cure an unsigned order. - HELD THAT: - The Court interpreted Section 160 as inapplicable to omission of signature because the provision preserves assessments and orders from being invalidated for mistakes, defects or omissions that do not affect substance; omission to sign is a fundamental defect not covered by that saving. Section 169 concerns prescribed modes of service and the deemed service of communications; it does not address or cure the absence of a signature on an order. Reliance on a coordinate bench decision reaching a similar conclusion was noted. [Paras 7, 8, 9, 10]Sections 160 and 169 cannot be invoked to validate an unsigned order; those provisions do not come to the department's rescue.Principles of natural justice - opportunity to reply to new grounds - The question whether the impugned order proceeds on a ground not mentioned in the show cause notice is left open and remitted to the authority for fresh consideration. - HELD THAT: - The Court did not decide the merits of the petitioner's contention that the order relies on a different ground than the show cause notice; instead it directed that the competent authority may, after considering the petitioner's existing reply and any additional reply filed within four weeks, proceed in accordance with law. If the authority intends to rely on a ground not previously notified, it may issue a fresh notice to afford the petitioner an opportunity to respond, thereby safeguarding the principles of natural justice. [Paras 12, 13, 14]Matter remitted to the competent authority to reconsider the ground(s) of the order; authority directed to pass fresh order after giving opportunity to the petitioner, the exercise to be completed within six weeks.Final Conclusion: Writ petition allowed in part: impugned unsigned order set aside; matter remitted to the Competent Authority to pass a fresh, signed order in accordance with law after considering the petitioner's reply (and any additional reply filed within four weeks), preferably within six weeks; no order as to costs. Issues involved:The judgment involves the challenge of an impugned order under Section 73(9) of the APGST/CGST Act, 2017 on grounds of the order being unsigned and the discrepancy between the ground stated in the show cause notice and the ground on which the order was passed.Unsigned Order Issue:The petitioner contended that the impugned order was unsigned, rendering it unenforceable. The Government Pleader argued that the order was uploaded by the competent authority, relying on Section 160 of the CGST Act, which states that assessments shall not be invalid by reason of any mistake, defect, or omission if they conform to the law. However, the court held that an unsigned order cannot be validated under Section 160 as it goes against the fundamental requirement of a valid order.Service of Notice Issue:The Government Pleader also cited Section 169 of the CGST Act regarding the service of notices, but the court determined that this section was not relevant to the case since the issue was the lack of signature on the order, not the method of service. The court referenced a previous case, A. V. Bhanoji Row vs. Assistant Commissioner, where it was held that signatures are essential and cannot be dispensed with under Sections 160 and 169 of the Act.Decision and Directions:The court allowed the writ petition on the grounds of the unsigned order, setting aside the impugned order and directing the Competent Authority to issue a fresh order in accordance with the law. The petitioner was given the opportunity to submit additional replies within four weeks. The entire process was to be completed within six weeks, and no costs were awarded.