2025 (9) TMI 861 - HC - GST

Order set aside due to notice posted only under Additional Notices tab; case remanded for fresh adjudication with hearing opportunity

The HC set aside the impugned order and remanded the matter to the adjudicating authority, finding the show-cause notice was uploaded only to an ... Principles of natural justice - SCN was uploaded on the ‘Additional Notices Tab’ - no personal hearing has also been availed of by the Petitioner - HELD THAT:- This Court in Neelgiri Machinery through its Proprietor Mr. Anil Kumar V. Commissioner Delhi Goods And Service Tax And Others [2025 (3) TMI 1308 - DELHI HIGH COURT] under similar circumstances where the SCN was uploaded on the ‘Additional Notices Tab’ had remanded the matter holding that 'The Department concedes that the portal works differently from the Department’s side and the tax payer’s side. Insofar as the Petitioner is concerned, the Department was not being able to view them on the Notices tab. The Petitioner, in support of its case, has placed on record the print out from the portal which shows that the same was viewable only on Additional notice and orders Tab and hence, may have been missed by the Petitioner.' Considering the fact that the Petitioner did not get a proper opportunity to be heard and no reply to the SCN has been filed by the Petitioner, the matter deserves to be remanded back to the concerned Adjudicating Authority. Accordingly, the impugned order is set aside. Petition disposed off. ISSUES PRESENTED AND CONSIDERED 1. Whether an adjudicating order passed pursuant to a Show Cause Notice uploaded on the GST portal (under the 'Additional Notices' tab) without adequate notice to the noticee warrants setting aside and remanding for fresh adjudication when the noticee did not file a reply or avail personal hearing. 2. Whether issuance of a reminder shortly after a portal-layout change, where the noticee may not have had actual or timely access to the reminder, satisfies principles of fair notice and opportunity to be heard. 3. What procedural safeguards and directions are required when notices/hearing notices are served through the GST portal to ensure compliance with principles of natural justice (including requirement of personal hearing and alternate modes of communication). 4. Whether providing access to the portal, an opportunity to upload replies, and a fresh personal hearing before the adjudicating authority is an adequate remedy in cases where procedural infirmity in service of notices is shown. ISSUE-WISE DETAILED ANALYSIS Issue 1: Validity of adjudication where SCN and reminder were uploaded on the portal but the noticee had no effective opportunity to reply or appear Legal framework: Principles of natural justice require that an accused/noticee be given reasonable opportunity to be heard before adverse orders are passed; service of notices must be such that the noticee has effective knowledge to enable response and appearance. Precedent treatment: The Court relied on and followed earlier decisions of this Court which, under analogous facts where notices were placed under less-visible portal tabs and the noticee lacked effective access, set aside impugned orders and remanded for fresh adjudication affording an opportunity to be heard. Interpretation and reasoning: The Court found that the SCN was uploaded prior to a portal-layout change and the reminder was issued one day after the change. Given the timing and the possibility that the petitioner (a PSU) may not have seen the reminder, the petitioner did not file a reply nor avail personal hearing. The Court noted the absence of clarity from the Department about effective notice and the risk that orders could be passed in default without substantive adjudication on merits. Ratio vs. Obiter: Ratio - where service through an online portal fails to provide effective notice or opportunity to be heard, resulting adjudication can be set aside and the matter remanded for fresh consideration after affording opportunity to reply and be heard. (This is the operative holding applied to the facts.) Conclusion: The impugned adjudicatory order was set aside and the matter remanded for fresh adjudication after the noticee is afforded an opportunity to file reply and appear for personal hearing. Issue 2: Sufficiency of a reminder issued post portal change to constitute valid notice Legal framework: Valid service requires not only technical posting but also reasonable assurance that the noticee received or had access to the notice; abrupt portal changes that affect visibility of notices can undermine effective service. Precedent treatment: The Court followed prior rulings which treated portal-placement and visibility as material to effective service and remanded matters where notices were not effectively communicated. Interpretation and reasoning: The reminder was issued one day after a portal change; the Court accepted it was possible the petitioner missed the reminder. The factual possibility of non-receipt, coupled with absence of reply and personal hearing, rendered service inadequate. The Court declined to treat the mere existence of a reminder on the portal as conclusive proof of fair opportunity where access or visibility was affected. Ratio vs. Obiter: Ratio - a reminder uploaded after a portal change may be insufficient to satisfy fair notice where the noticee demonstrates plausible non-receipt or lack of access; remand is appropriate to cure the procedural defect. Conclusion: The reminder alone did not cure the procedural infirmity; the adjudication could not stand without an opportunity to respond and be heard. Issue 3: Appropriate directions for service and hearing when notices are communicated via GST portal Legal framework: Administrative notices served electronically must be supplemented by measures that reasonably ensure receipt (e.g., e-mail, SMS) especially where portal changes affect accessibility; the right to personal hearing is to be honoured before passing orders on SCNs. Precedent treatment: Consistent with earlier decisions, the Court directed remedial procedural safeguards rather than striking down the statutory scheme - mandating additional modes of communication and an opportunity for in-person or personal hearing. Interpretation and reasoning: To ensure that the noticee is not prejudiced by portal-visibility issues, the Court required that hearing notices not be merely uploaded but also emailed to the noticee; further, a specific timeline for filing replies and conducting personal hearings was issued. Access to the portal was to be provided within a week to enable uploading of replies and access to documents. Ratio vs. Obiter: Ratio - when portal-based service is relied upon, administrative authorities must (i) email hearing notices in addition to uploading them, (ii) provide portal access for uploading replies and accessing documents, and (iii) afford a personal hearing before adjudication. These directions are binding on the adjudicating authority in the remand context. Conclusion: The Court directed that hearing notices be emailed in addition to being uploaded; portal access be granted; and personal hearing be provided, with the petitioner's replies to be considered before fresh orders are passed. Issue 4: Adequacy of remand and timelines as remedy Legal framework: Where procedural infirmity inhibits effective participation, remand for fresh consideration after cure of defect is an appropriate and proportionate remedy preserving substantive adjudication. Precedent treatment: The Court followed the remedial approach adopted in earlier rulings which remanded matters for fresh adjudication with specified timelines and directions to ensure fair opportunity. Interpretation and reasoning: Given the petitioner had not filed a reply and did not avail personal hearing, the Court set aside the impugned order and granted a specified period within which the petitioner must file its reply (a calendar deadline was fixed). The Adjudicating Authority was directed to issue a personal hearing notice and consider the reply and hearing submissions before passing a fresh order. The Court also expressly left open all rights and remedies and stated the order would not act as a precedent for other cases. Ratio vs. Obiter: Ratio - remand with specific procedural directions and timelines (including provision of portal access, email communication, filing period for reply, and personal hearing) is an adequate and proportionate remedy to cure denial of opportunity to be heard. Conclusion: The Court remanded the matter, set aside the impugned order, fixed a deadline for filing the reply, ordered issuing of personal hearing notice communicated by email and mobile, required the Adjudicating Authority to consider all submissions and pass a fresh order, and mandated portal access to the noticee to enable uploading and inspection of documents. Ancillary findings and administrative directions 1. The Court observed that the matter involves unique features including the petitioner being a public sector entity and timing of the portal change relative to issuance of reminder; these factual considerations informed the remedial directions. 2. The Court clarified that the order is confined to the facts before it and shall not act as precedent for other cases; however, it applied and followed the established principle that effective notice and opportunity to be heard are indispensable. 3. All pending applications arising from the petition were disposed of; rights and remedies of the parties were expressly left open for further proceedings consistent with the directions issued.