2025 (9) TMI 1149 - HC - GST

Section 107 period starts only when authority actively communicates order to assessee; mere GSTN upload is not communication

Sharp Tanks and Structurals Private Limited, Rep. by its Authorised Rep. Smt. Nisha Menon Versus The Deputy Commissioner (GST) (Appeals), The State Tax Officer (Survey Unit), Tirunelveli

HC held the limitation under Section 107 begins when the order or decision is communicated to the assessee; mere uploading of the impugned order on the ... Service of order or not - uploading the impugned order in the GSTN portal alone is sufficient or not - limitation for filing appeal under Section 107 of the Act would start running from the date of uploading or not - HELD 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. A literary person, to flaunt his richness of vocabulary, may use different words to mean one and the same thing. A lawmaker will desist from such endeavour. Article 22 of the Constitution of India also employs the expression “communicate”. It has been held in more than one decision that communication is a strong word. In P.Ramanatha Aiyar's Advanced Law Lexicon, the term “communicate” is defined to mean impart or transmit information. The element of reaching out is implied in communication. 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. Section 107 deals only with appeal against decision/order. Since the written submissions pertain to a larger canvas, the same verbatim is extracted. It is for those at the ultimate helm of affairs to take note of the suggestions made. Petition disposed off. ISSUES PRESENTED AND CONSIDERED 1. Whether uploading an adjudication order or show cause notice on the GST common portal alone constitutes effective 'communication' for the purpose of triggering the limitation period under Section 107(1) of the Act. 2. Whether uploading an order in the common portal constitutes 'service' within Section 169(1) and, if so, whether service by portal is sufficient in all circumstances or whether fairness/realities may require additional modes of service. 3. Whether, where an impugned order has only been uploaded on the portal and not otherwise communicated, the limitation for filing an appeal under Section 107(1) begins to run; and the consequent interim effect on enforcement of such orders. ISSUE-WISE DETAILED ANALYSIS Issue 1: Whether portal upload alone constitutes 'communication' so as to start limitation under Section 107(1) Legal framework: Section 107(1) prescribes that appeals lie within three months 'from the date on which the said decision or order is communicated to such person.' Section 169 prescribes modes of 'service' of decision, order, summons, notice or other communication and deems service to occur on the date on which it is tendered, published or affixed as provided. Precedent treatment: Conflicting High Court decisions exist. Some rulings of this High Court and other High Courts have held portal upload to be a valid mode of service or 'tendering' (treated as service). Other decisions have taken the contrary view that portal upload alone is insufficient to constitute effective communication or service in practice. Interpretation and reasoning: The Court distinguishes between the statutory expressions 'served' and 'communicated', holding they are not synonymous. Communication implies imparting or transmitting information with an element of reaching out; it is a bipartite affair in which the authority must effect transmission to the addressee (for example by tendering directly, registered post, courier, e-mail). Mere uploading on a portal, absent any further step to ensure that the addressee has been reached or that the authority has otherwise effected communication, does not satisfy the statutory requirement of 'communication' under Section 107(1). The Court emphasises principles of fair administrative exercise of statutory powers and practical interpretation: administrative powers must be reasonably exercised and construed to give effect to the statute in light of ground realities, including the digital divide and practical difficulties faced by small businesses and cancelled-registration taxpayers who may not access the portal. Ratio vs. Obiter: Ratio - The limitation under Section 107(1) begins to run from the date the decision/order is 'communicated' to the person; mere upload on the portal without communication does not commence the limitation period. Obiter - Observations on technological suggestions and portal redesign are advisory and not binding on statutory construction. Conclusion: Portal upload alone does not, as a general proposition, constitute 'communication' for triggering limitation under Section 107(1); the authority must effect communication in a manner that reasonably imparts the order to the addressee in accordance with Section 169 and the statutory purpose. Issue 2: Whether portal upload constitutes 'service' under Section 169(1) and the scope of modes of service Legal framework: Section 169(1) lists alternative modes of service (direct tendering, registered/speed post/courier, e-mail, making it available on the common portal, publication, affixation); Section 169(2) and (3) deem services effected by specified means to have been served on the relevant date. Rule 142 prescribes mandatory portal summaries and uploads for notices, statements and orders in specified forms. Precedent treatment: A line of authorities has held that making an order available on the common portal amounts to 'tendering' and is a valid mode of service under Section 169. Other authorities have emphasised that the listed modes are alternative (not cumulative) and that portal upload is one valid mode. Counter decisions and benches have stressed practical ineffectiveness of portal-only service and required additional steps in certain circumstances. Interpretation and reasoning: The Court recognises that Section 169 provides alternative modes of service and that the department has the statutory choice to select a mode. It accepts that portal upload is a prescribed mode of service under Clause (d) of Section 169(1) and that Rule 142 mandates portal uploads in certain situations. However, exercise of the power to choose a mode must be reasonable and fair in all circumstances. Where fairness and the facts of the case require, the authority may be obliged to resort to additional modes of service (e.g., registered post, courier, e-mail, or direct tendering) beyond mere upload, particularly where the person concerned is unlikely to access the portal (for instance cancelled registration, small taxpayers who rely on third-party consultants, or other situations evidencing non-receipt). Ratio vs. Obiter: Ratio - Portal upload is a legitimate mode of service under Section 169(1)(d), but its sufficiency depends on context and fairness; administrative choice of a mode must be reasonably exercised. Obiter - The Court's ancillary remarks on the mandatory nature of certain Rule 142 uploads and on broader portal improvements are advisory and not determinative of statutory interpretation beyond the facts. Conclusion: Portal upload is a valid statutory mode of service, but it is not invariably sufficient; in particular factual matrices the authority must effect service by other modes as well to ensure fair communication. Issue 3: Consequence where order uploaded only on portal - effect on limitation and enforcement Legal framework: Section 107(1) (appeal limitation from date of communication); Section 169 (service and deemed dates); Rule 142 (portal summaries and mandatory uploads); statutory appeals regime (three months with condonation provision of 30 days). Precedent treatment: Earlier authorities have held that limitation runs from upload or from deemed service; opposing authorities require actual communication or additional steps. Supreme Court dicta on reasonable exercise of administrative power and practical interpretation are invoked to ground a fairness approach. Interpretation and reasoning: Given that 'communication' is the trigger for limitation under Section 107(1) and that mere portal upload in the absence of communication does not satisfy that statutory requirement, the Court holds that the limitation period did not commence where the impugned order was only uploaded on the portal and not otherwise communicated. Consequently, the petitioner had not missed the appellate limitation and is entitled to pursue appeal under Section 107(1) once the order is lawfully communicated. Further, where communication has not occurred as required, the order cannot be enforced until lawful communication is effected. Ratio vs. Obiter: Ratio - Where an order has only been uploaded on the portal and has not been communicated to the person as required, limitation for appeal under Section 107(1) does not begin to run; the adjudicating authority shall communicate the order (by an acceptable mode) and enforcement is stayed until communication. Obiter - Practical suggestions for portal redesign and OTP/acknowledgement mechanisms are recommendations and not binding directives implementing statutory change. Conclusion: The Court directed the authority to communicate the impugned order to the assessee in accordance with law, permitted the filing of appeal under Section 107 after such communication, and held that the order could not be enforced until valid communication was effected. Cross-references and ancillary observations - The Court cross-referenced Section 169 and Rule 142 in concluding that, although portal uploads are mandated in part, fairness and the statutory requirement of communication under Section 107(1) require that authorities exercise choice of service reasonably and may in apt cases effect additional modes of service. - The Court noted the digital divide and practical realities (e.g., cancelled registration, small taxpayers, consultants handling filings) as relevant to determinations of whether portal upload suffices in a given case. - The Court recorded existing conflicting judicial views, treated earlier decisions that characterised portal upload as 'tendering' as distinguishable on facts, and applied principles of practical interpretation and fair administrative exercise of statutory powers to reach its conclusion.