TaxTMI 
TaxTMI 
2025 (4) TMI 1381
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....nstruments, Vijayalakshmi Enterprises, Tvl.Nambi India Engineering, Ideal Textiles, MPM Enterprises, Sri Annamalai Traders, Chota Dhobi Laundry Solutions Private Limited, Tvl Sri Vinayaga Tiles and Granites, M/s.Incarnus Technologies India Private Limited, Tvl Pluto Shipping and Logistics Private Limited, Chennai Polymer House, Tvl SVN Leathers, Tvl.Katyayani Granites, Tvl Sri Mahalakshmi Traders, Tvl Sri Mahalakshmi Traders, Clar Auqa Private Limited, VPR Enterprises, M/s Md Kitchen Appliances, M/s VSL Earth Movver, Tvl K V K Senthilnathan Contractor, Tvl Devi Hardware and Electricals, Tvl.Chem Blue Diamond Sales And Service, Tvl.Vardhan Infraastructure, Sindu Priya Enterprises, Tvl .DHANALAKSHMI METALFINISHERS, Tvl Sanskar Corporation, Tvl Sri Dhanalakshmi Industries, M/S.Sakthi Cotton Mills, Sree Kumaran Trading Company, VBN Builders, Dharmaraj Chithra, Tvl AKR Construction, Tvl Priyanka Arcade Limited, M/s Amman Tractors, M/s.Ganesha Electricals, Ms Optima Life Sciences Private Limited, M/s. SPP Enterprises Pvt. Ltd. Versus State Tax Officer (intelligence), Group-2, State Tax Officer, namakkal (rural)(c), The Assistant Commissioner(st), The Deputy Commissioner (CT), The State T....
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....eas, in W.P.No.5806 of 2025 is concerned, the GST Registration of the petitioner was cancelled based on the voluntary request made by the petitioner. Subsequent to the said cancellation, the impugned ex parte assessment order was passed by the respondent. 2.4 In all the other writ petitions, being unaware of the show cause notices, the petitioners were unable to file their reply. Under these circumstances, the assessment orders have been passed in ex parte without providing any opportunity of personal hearing to the petitioners. 3. Submissions made on behalf of the petitioners: 3.1 Mr.Joseph Prabhakar, Mr.S.Durairaj, Mr.G.Natarajan, Mr.K.Sankaranarayan, Mr.S.Sathyanarayan, Mr.N.V.Balaji & Mr.V.Sundaresan, all the learned counsel had advanced their arguments on behalf of the petitioners. 3.2 According to the petitioners, they were unable to participate in the proceedings for the following reasons: i) In majority of cases, the Show Cause Notices were uploaded by the respondents in the "View Additional Notices and Orders" column instead of "View Notices" column and hence, though the petitioners had occasions to visit the portal twice in a month for filing their mo....
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....on 169(2) of the GST Act, Mr.Joseph Prabakaran, learned counsel would submit that the subsection (2) implies three terms, viz., "tendering", "publishing" and "affixing". The term "tendering" relates to Section 169(1)(a), the term "affixing" relates to Section 169(1)(f) and the term "publishing" relates to Section 169(1)(e) of the GST Act. As far as the provisions of Section 169(1)(b) is concerned, it deals with the service of notice vide RPAD, whereas, Section 169(1)(d) only talks about making it available in the portal. 3.6 Hence, he would contend that the legal fiction mandated in sub-section (2) of Section 169 has no application to the provision of Section 169(1)(d), i.e., making it available in common portal. Therefore, he would submit that the said mode of service is neither sufficient nor effective and thus, in order to comply with Section 169(2) of the GST Act, necessarily the respondents have to send the notices through other modes as well. 3.7 Further, he would submit that in terms of Section 107 of GST Act, a tax payer can prefer an appeal against the assessment order within a period of 3 months from the date on which the said assessment order was communicated. Here....
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.... without serving the notices in proper manner and without providing any opportunity of personal hearing, the impugned assessment orders came to be passed by the respondents, which is violation of principles of natural justice. 3.11 Therefore, all the respective learned counsel for the petitioners would submit that all these ex parte impugned orders are liable to be set aside. Hence, they requests this Court to remand the matters back to the concerned respondents for fresh consideration. 4. Submissions made by the respondents: 4.1 Per contra, Mr.P.S.Raman, learned Advocate General and Mr.AR.L.Sundaresan, learned Additional Solicitor General appearing for the respondents, in unison, would submit that the provisions of Section 169 of the GST Act provides different modes of services, which are alternative to one another and hence, it would be sufficient if any one of the modes of services is followed by the respondent. 4.2 In these cases, the notices had been uploaded in the common portal in terms of Section 169(1)(d) of the GST Act. Once the notices were uploaded in common portal, it would amount to be tendered and communicated to the Assessee's and the same is deemed to b....
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....tronic way bill and for carrying out such other functions and for such purposes as may be prescribed." 4.7 Further, they had referred Section 169 of the GST Act and Sections 12 & 13 of the IT Act and submitted that S.169(2) creates a deeming fiction in regard to date of service only in respect to modes prescribed in S.169(1)(a) "by giving or tendering", S.169(1)(b) "by registered post or speed post or courier", S.169(1)(e) "by publication in a newspaper" and S.169(1)(f) "by affixure". 4.8 The reason for non-inclusion of S.169(1)(c) & 169(1)(d) within deeming fiction of S. 169(2) is that the service of notice/orders in cases where service is effected by email or by uploading to the Common Portal, service happens instantaneously, i.e., the moment the said email has been sent by the Assessing Authority (originator of the email) or when the said Assessing Authority uploads the notice/order on the Common Portal of the assessee. The method of service of an electronic record through an electronic platform such as the Common Portal is dealt with under S.12 and S.13 of the Information Technology Act, 2000. Therefore, there is no necessity to include....
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....f service of electronic records through an electronic. In this context it becomes imperative to understand (i) what is "computer resource" and (ii) the process by which a computer resource becomes a "designated computer resource". 4.13 S.2(k) of the IT Act defines a "computer resource" as "computer computer system, computer network, data, computer data base or software". It is of note that the scheme of the IT Act offers an expansive definition of the term computer resource capable of encompassing within its ambit text-messages, email networks, and any computer network created for a specific purpose. 4.14 The IT Act neither defines the term "designated computer resource", nor does it prescribe the manner in which a computer resource becomes a designated computer resource. Thus, to understand what is a designated computer resource and the manner in which a computer resource becomes a designated computer resource one must turn to common parlance and to judicial pronouncements on the subject how must be understood in the manner in which it was intended by Parliament. 4.15 Further, they explained with regard to the designated computer resource and about the manner to designate....
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....3(2)(a)(i) of the IT Act applies. The date and time of receipt occurs at the time when the electronic record enters the designated computer resource, i.e., at the time of uploading the SCNs and orders. 4.20 S.169(1)(d) of the Act permits the Assessing Authority to communicate the notices and orders by way of making it available on the Common Portal. The Respondents have gone beyond this statutory mandate and have also sent email and SMS prompts to assessee's intimating them that notices/orders have been uploaded to the Common Portal to enable them to promptly check and retrieve the same. Thus, the Respondents have discharged their statutory obligations. 4.21 The notices and orders were served on the assessee's through a designated computer Common Portal. Thus, the date and time of service ought to be S.13(2)(a)(i) of the IT Act, i.e., when the electronic record enters the designated computer resource or when the notice/order is uploaded on the Common Portal. Thus, service of SCNs and orders on the Common Portal is instantaneous. The limitation period for computing period of appeal under S.107 of the Act must start from the date the order was uploaded on the Common Portal. ....
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....pective learned counsel for the petitioners and Mr.P.S.Raman, learned Advocate General and Mr.AR.L.Sundaresan, learned Additional Solicitor General appearing for the respondents and also perused the materials available on record. 6. In these cases, the petitioners were aggrieved over the ex parte impugned assessment orders passed by the respondent in violation of principles of natural justice. 7. According to the petitioners, all the notices were uploaded by the respondents in common portal in terms of the Section 169(1)(d) of the GST Act, which is not a valid mode of service. Further, it was contended on behalf of the petitioners that when the other effective modes of services are available, the respondents are supposed to have sent notices through the said alternative modes as well. 8. Arguments were extensively made by referring the provisions of Section 169 & 107 of the GST Act, Rule 142 of GST Rules and Sections 11, 12, 13 of IT Act. By referring the IT Act, it was submitted that the petitioners have not "designated any computer resource" and if no computer resource was "designated", in terms of Section 13(2)(a)(ii) of the IT Act, the time and place of receipt of elec....
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....at his last known place of business or residence; or (c) by sending a communication to his email 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, i....
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....e recipient. That apart, I am also unable to ascribe any conscious intention on the part of the Legislature to exclude uploading as one of the modes of service. This argument is rejected." 15. At this juncture, it would be apposite to extract the provisions of Section 13(1) & (2) of the IT Act, hereunder: 13. Time and place of despatch and receipt of electronic record.- (1) Save as otherwise agreed to between the originator and the addressee, the despatch of an electronic record occurs when it enters a computer resource outside the control of the originator. (2) Save as otherwise agreed between the originator and the addressee, the time of receipt of an electronic record shall be determined as follows, namely:- (a) if the addressee has designated a computer resource for the purpose of receiving electronic records,- (i) receipt occurs at the time when the electronic record enters the designated computer resource; or (ii) if the electronic record is sent to a computer resource of the addressee that is not the designated computer resource, receipt occurs at the time when the electronic record is retrieved by the addressee; ....
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...." 21. However, there is no precise definition for the term "designated computer resource". Therefore, we have to look into the meaning of the term "designated" in Oxford English Dictionary, whereby it has been defined as follows: "The Oxford English Dictionary defines the term designate in its verb form as "to appoint to an office or function" or "to nominate for some role". The Oxford English Dictionary defines the term designate in its adjective form as "to mark out to a specific position". The underlying thrust of the definition is to clearly identify someone or something for a particular purpose." 22. Therefore, by reading the above definition, the word "designated" is nothing but to "appoint" or "nominate" or "mark out" or "identify" a particular computer resource. 23. It is very pertinent to point out here that there are occasions for the petitioners/Assessee's to designate the computer resource other than the common portal, for example, when the Assessee is making an application for cancellation of GST Registration, they will provide an e-mail ID and address to the respondents for the purpose of future communication and thereafter, all the....
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....urce. 28. In the present case, there is no dispute on the aspect that the common portal is the computer resource. By virtue of Section 169(1)(d) of the GST Act, all the communications, notices, orders, etc., will be uploaded in the common portal. In such case, if an Assessee is intend to designate a computer resource for the purpose of receiving the communications, orders, summons, etc., in terms of provisions of Section 169(1)(d) of the GST Act, they can designate the common portal as computer resource, from the date of obtaining of GST Registration until its cancellation. Therefore, if an Assessee nominate the common portal as their designated computer resource, the provisions of Section 13(2)(a)(i) of the IT Act will apply. On the other hand, if he failed to designate any computer resources, the provisions of Section 13(2)(b) will come into picture. 29. Therefore, in terms of provisions of Section 169(1)(d) of the GST Act read with Section 13(2)(a)(i) & 13(2)(b) of the IT Act, it is crystal clear that once if the notices, orders and other communications are uploaded in the common portal, the receipt would occur immediately when the electronic records enter the said common ....
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....e petitioners have participated in the personal hearing before the respondent. 35. Hence, it is clear that though no responses were received for the show cause notices, which were uploaded in the common portal, the respondent had continued to upload the reminder notices also in the same portal. 36. Section 169 of the GST Act makes it clear that the service may be effected by virtue of 5 different modes, each one is alternative to one another and the service shall be effected by any one of the modes as prescribed therein. This aspect was elaborately discussed by this Court in New Grace Automech Products Pvt. Ltd., vs. State Tax Officer (referred supra). 37. The respondents, being well aware of the fact the mode of service adopted by them is not effective but only sufficient in terms of Section 169(1)(d) of the GST Act, had proceeded to pass ex parte assessment order. Normally, when a mode adopted by the respondents is not effective, they should have explored the possibilities by sending notices through other modes of services as prescribed therein. There is no bar for the respondent to do so. When such being the case, this Court is unable to understand as to why these Asses....
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....and that the ex parte assessment order has been passed in violation of principles of natural justice. Thereafter, only recourse available to the petitioner is to file an appeal against the assessment order. At any cost, the sending of notices by RPAD cannot be dispensed since the Statute provides it as one of the alternative modes of services to the Assessee. Whenever a service is not effective, certainly, the respondent has to follow the alternative modes of service. 41. For all these reasons, this Court is inclined to set aside the ex parte assessment orders. However, since the mode adopted by the respondent is sufficient mode, the petitioner had chances to view the portal and participate in the proceedings, but they had failed to do so. Therefore, this Court is of the view that the fault is on both the petitioner as well as the respondent and thus, this Court is inclined to set aside the impugned orders on terms. 42. As far as the writ petitions in W.P.Nos.3119, 4015 & 5038 of 2025 are concerned, though the reply was filed by the petitioner, no opportunity of personal hearing was provided by the respondent prior to the passed of impugned orders. Normally, when the responde....