TaxTMI 
TaxTMI 
2025 (12) TMI 1598
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....oja Talwar, Sri Vedant Agrawal and Sri Rishi Raj Kapoor, Sri Anup Shukla holding brief of Sri Devansh Mishra, Ms. Akashi Agarwal and Sri Vishwaraj Singh on behalf of petitioners; Sri Anoop Trivedi learned Additional Advocate General assisted by Sri Arvind Kumar Mishra and Sri Ankur Agarwal learned Standing Counsel for the State of Uttar Pradesh, Sri S.P. Singh learned ASGI assisted by Sri Gopal Verma for the Union of India and the GSTN, and Sri Gaurav Mahajan and Sri Amit Mahajan for the central revenue authorities. Also, we have taken assistance of Sri Praveen Kumar, as amicus curiae. 2. Present batch of petitions has been filed by different petitioners assailing individual Adjudication Orders passed against them, under the UPGST Act, 2017 (hereinafter referred to as the 'State Act') and the CGST Act, 2017 (hereinafter referred to as the 'Central Act'). At the outset, strong preliminary objection has been raised by the revenue as to maintainability of these petitions. It has been submitted that the Adjudication Orders are appealable. Therefore, the present petitions may not be entertained, and the individual petitioners be relegated to the forum of alternative remedy. Learned c....
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....ch facts, a question has arisen-if the orders impugned in the individual writ petitions have been 'communicated' to the individual petitioners, within the meaning of that word used in Section 107 of the State/Central Act? Unless the orders to be appealed are effectively 'communicated' to the person aggrieved (by that order), who may then seek an appeal remedy thereagainst, the period of limitation of three months to file such appeal, may not start running. 5. The word 'communicated' is not defined under the State/Central Act. However, learned counsel appearing for either party have referred to Section 169 of those Acts as also Sections 4, 12 and 13 of the Information Technology Act 2000 (hereinafter referred to as the 'IT Act'). 6. Seen in that light, a legal issue has arisen - if a Show Cause Notice or other notice or order passed either under the State Act or the Central Act may be found served or may be found 'deemed served' in terms of Section 169 of the State/Central Act, on such person, upon it being uploaded and thus made available on the Common Portal of the GSTN, or on dispatch of electronic mail at the email address provided by the affected person, at the time of ob....
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....t, or to one of his employees or to any audit member of his family residing with him]; (b) by registered post: Provided that if, upon an attempt having been made to serve any such notice, summons order by either of the above said methods, the authority concerned has reasonable ground to believe that the addressee is evading service or that, for any other reason which in the opinion of such authority is sufficient, service cannot be effected by any of the above said methods, the said authority shall, after recording the reasons therefore, cause the notice, summons or order to be served by affixing a copy thereof- (i) if the addressee is a dealer, on some conspicuous part of the dealer's place of business or the building in which the dealer's place of business is located, or upon some conspicuous part of the place of the dealer's business last intimated to the said authority by the dealer or of the place where the dealer is known to have last carried on business or the place where the dealer resides; or (i) if the addressee is not a dealer on some conspicuous part of his residence or office of the building which his office or residence is located ; and such service sha....
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....ther than an order mentioned in section 10A or sub-section (6) of section 13A, may, within thirty days from the date of service of the copy of the order, appeal to such authority as may be prescribed: PROVIDED that where the disputed amount of tax, fee or penalty does not exceed one thousand rupees, the appellant may, at his option, request the appellate authority in writing for summary disposal of his appeal, whereupon the appellate authority may decide the appeal accordingly. (3) The appellate authority may, after calling for and examining the relevant records and after giving the appellant and the Commissioner a reasonable opportunity of being heard or, as the case may be, after following the procedure prescribed under sub-section (1A) (a) In the case of an order of assessment or penalty, (i) confirm or annul such order; or (ii) vary such order by reducing or enhancing the amount of assessment or penalty, as the case maybe, whether such reduction or enhancement arises from a point raised in the grounds of appeal or otherwise; or (iii) set aside the order and direct the assessing authority to pass a fresh order after such inquiry as may be specified; or (iv) dir....
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....rder is issued, service on any manager or agent, who, at the time of service, personally carries on such business or work for such person within such limits, shall be deemed good service. (c) Service on an adult member of dealer or concerned person's family- Where in any case the dealer or person concerned is absent from his residence at the time when the service of notice, summons or order is sought to be effected at his residence and there is no likelihood of his being found at the residence within a reasonable time and he has no agent empowered to accept service of the notice, summons or order on his behalf, service may be made on any adult member of the family, whether male or female, who is residing with him. Explanation: A servant is not a member of the family within the meaning of this rule. (d) Person served to sign acknowledgement- Where the process server delivers or tenders a copy of the notice, order or summons to the dealer or person concerned personally, or to an agent or other person on his behalf, he shall require the signature of the person to whom the copy is so delivered or tendered to an acknowledgement of service endorsed on the original notice, ....
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.... in addition to personal service- (i) The authority shall, in addition to, and simultaneously with, the issue of notice, order or summons for service in the manner provided under this rule, also direct the notice, order or summons to be served by registered post, acknowledgement due, addressed to the dealer or person concerned, or his agent empowered to accept the service, at the place where the dealer or person concerned, or his agent, actually and voluntarily resided or carries on business or personally works for gain. Provided that nothing in this sub-clause shall require the authority to issue a notice, order or summons for service by registered post, where, in the circumstances of the case, the authority considers it unnecessary. (ii) when an acknowledgement purporting to be singed by the dealer or person concerned or his agent is received by the authority or the postal article containing the notice, order or summons is received back by the authority with an endorsement purporting to have been made by a postal employee to the effect that the dealer or person concerned or his agent had refused to take delivery of the postal article containing the notice, order or summons,....
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.... order or summon is sent- The authority to which a notice, order or summons is sent under clause (j) shall, upon receipt thereof, proceed as if it has been issued by such authority and shall then return the notice, order or summons to the issuing authority, together with the record (if any) of its proceedings with regard thereto. (l) Service on dealer or person concerned in prison - Where the dealer or person concerned is confined in a prison, the notice, order or summons shall be delivered or sent by post or otherwise to the officer in charge of the prison for service on the dealer or person concerned. (m) Service on civil public officer or on servant of railway or local authority -Where person concerned is a public officer (not belonging to the Indian military, naval or air forces), or is a servant of a railway or local authority, the authority may, if it appears to it that the notice, order or summons may be most conveniently so served, send it for service on the person concerned to the head of the officer in which he is employed together with a copy to be retained by the person concerned. (n) Duty of a person to whom notice, order or summon is delivered or sent for ....
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....e opportunity of being heard to the appellant and the Commissioner- (a) in the case of an order of assessment and penalty.- (i) confirm or annul such order ; or (ii) vary such order by reducing or enhancing the amount of assessment or penalty, as the case may be, whether such reduction or enhancement arises from a point raised in the grounds of appeal or otherwise ; or (iii) set aside the order and direct the assessing authority to pass a fresh order after such inquiry as may be specified; or (iv) direct the assessing authority to make such inquiry and to submit its report within such time as may be specified in the direction or within such extended time as it may allow from time to time, and on the expiration of such time the appellate authority may, whether the report has been submitted or not decide the appeal in accordance with the provisions of the preceding sub-clauses; or (b) in the case of any other order- (i) confirm, cancel or vary such order; or (ii) set aside the order and direct the assessing authority to pass a fresh order after such inquiry as may be specified: Provided that nothing in this sub-section shall preclude the appellate authority....
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....oceedings, had no notice of initiation of such proceedings; (ii) as a result of ex parte assessment or reassessment, without proper basis amount of tax has been levied; (iii) undue hardship will be caused to the dealer if such assessed tax is realized from him; and (iv) if, after giving reasonable opportunity of being heard to the dealer, tax is reassessed, demand created by earlier order of assessment or reassessment may stand reduced to a large extent, he may direct the assessing authority to set aside such ex parte order of assessment or reassessment and to make assessment or reassessment after affording reasonable opportunity to the dealer, if the dealer presents an application before the Commissioner within a period of sixty days from the date on which dealer receives the order passed by the Tribunal under section 57. Central Excise Act, 1944. Section 37C. Service of decisions, orders, summons, etc. - (1) Any decision or order passed or any summons or notices issued under this Act or the rules made thereunder, shall be served,-- (a) by tendering the decision, order, summons or notice, or sending it by registered post with acknowledgment due or by speed pos....
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....issued, or to the e-mail address available in any official correspondence of such person; (d) by publishing it in a newspaper widely circulated in the locality in which the person to whom it is issued is last known to have resided or carried on business; or (e) by affixing it in some conspicuous place at the last known place of business or residence of the person to whom it is issued and if such mode is not practicable for any reason, then, by affixing a copy thereof on the notice board of the office or uploading on the official website, if any. 128. Appeals to Commissioner (Appeals).- (1) Any person aggrieved by any decision or order passed under this Act by an officer of customs lower in rank than a Principal Commissioner of Customs or Commissioner of Customs] may appeal to the Commissioner (Appeals) within sixty days from the date of the communication to him of such decision or order: Provided that the Commissioner (Appeals) may, if he is satisfied that the appellant was prevented by sufficient cause from presenting the appeal within the aforesaid period of sixty days, allow it to be presented within a further period of thirty days. Finance Act, 1994 ....
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....) may be delivered or transmitted to the person therein named. 249. Form of appeal and limitation. (2) The appeal shall be presented within thirty days of the following date, that is to say,- (a) where the appeal is under section 248, the date of payment of the tax, or (b) where the appeal relates to any assessment or penalty, the date of service of the notice of demand relating to the assessment or penalty: Provided that, where an application has been made under section 146 for reopening an assessment, the period from the date on which the application is made to the date on which the order passed on the application is served on the assessee shall be excluded, or (c) in any other case, the date on which intimation of the order sought to be appealed against is served. Goods & Service Tax Act, 2017 Section 169. Service of notice in certain circumstances.- (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....
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.... not been paid or short-paid or erroneously refunded, or where input tax credit has been wrongly availed or utilised, no order requiring the appellant to pay such tax or input tax credit shall be passed unless the appellant is given notice to show cause against the proposed order and the order is passed within the time limit specified under section 73 or section 74 or section 74A. 10. Thus, in short, it may be noted that the State/Central Acts seek to transform the pre-existing physical/offline mode of service of notices and orders as also filing of appeals, by enabling electronic modes, chiefly by employing the Common Portal of the GSTN. Thus, all communications between the authorities and the assessee are permitted through electronic mode, by way of a complete alternative to the offline/physical mode. At present, only hearings are permitted through offline mode. The faceless mechanism otherwise adopted under the Income Tax Act, 1961, does not find place under the GST regime, at present. 11. As noted above, by way of a direct consequence of the sudden transformative change introduced upon the enforcement of the GST laws, numerous challenges arose both to the assess....
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....uent executive/administrative action under the GST regime, it is further observed - the grievances of the assessee's are three fold. First, the assessee's are claiming violation of principles of natural justice occasioned by non-service of Show Cause Notices and Adjudication Orders (through physical/offline mode). Second, they are aggrieved that the hard period of limitation prescribed under Section 107 is being lost for reason of non-communication of the Adjudication Orders (though physical/offline modes). Third, neither the appeal authority (under the GST regime) has the power to set aside the Adjudication Order and remit the proceedings to the Adjudicating Authority to pass afresh order nor the Adjudicating Authority has the power (under the GST regime) to set aside an ex parte order, passed by it. 14. Cumulatively, the assessee's are at loss of hearing at the first tier, which is the most crucial tier in tax litigation. Unless an assessee is given full opportunity to file objections/replies and unless he is heard by the Assessing/Adjudicating Authority, the relief in the appeal remedy may itself become more difficult to avail, especially since the appeal authority may only p....
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...., that facts are otherwise, in the first place a coordinate bench in Mahaveer Trading Company Vs. Deputy Commissioner State Tax And Another, Neutral Citation No.- 2024:AHC:38820-DB, a coordinate bench took note of similar and other violations of rules of natural justice, by Adjudicating Authorities and thus set aside the Adjudication Order. 7. Again in another order passed by a coordinate bench in M/S Shubham Steel Traders Vs. State of U.P. and Another, Neutral Citation No2024: AHC:31108-DB, it has been observed as below: "10. Rules of natural justice ensure fairness in proceedings. Once the authority had fixed the matter for hearing on 06.11.2023 it was incumbent on that authority either to pass the order or to fix another date and communicate the same to the petitioner. Communication of the other date was necessary as according to the assessing authority the petitioner failed to appear before it on the date fixed on 06.11.2023. 11. By not passing the order on 06.11.2023 and not communicating the next date fixed in the proceedings, the assessing authority forced the ex-parte nature of the order on the petitioner, by its own conduct." 8. In view ....
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.... 77 09.12.2025 52 10.12.2025 110 11.12.2025 61 12.12.2025 83 15.12.2025 83 16.12.2025 20 17.12.2025 114 18.12.2025 111 19.12.2025 213 17. Consequentially, more than 2300 cases have arisen and have been disposed of in the terms of M/s Riya Construction (supra), including earlier in the day, today. However, that may (in a self-critical way), only reflect the rough and ready or minimum justice delivered, owing to extreme circumstances; existence of widespread grievances, and need to serve the larger cause of justice. Citizens and other entities may be assessed to pay tax and demands made, only after being given a reasonable opportunity of being heard. Their right of appeal may not be curtailed, lightly. Also, precious revenue (to the State), may not stay locked in litigation, indefinitely. Thus, against payment of about 10% of the disputed demand of tax (which is the amount required to be deposited to file a statutory first appeal), such ex parte Adjudication Orders have been set aside and proceedings remitted to the Adjudicating Authorities, on the terms provided in individual orders. Barring cases where 10% amount is less t....
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....of Uttar Pradesh & Another एवं इससे सम्बद्ध अन्य वादों में मा० उच्च न्यायालय, इलाहाबाद के अंतरिम निर्णय दिनांक 26.11.2025 के संदर्भ में इंस्ट्रक्शन (Instruction) 1. यह कि रिट टैक्स संख्या-2707/2025, M/s Bambino Agro Industries Ltd. Vs. State of Uttar Pradesh & Another के वाद में मा० उच्च न्यायालय, इलाहाबाद के समक्....
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....#2311;न ही किये जाते हैं, ऐसी स्थिति में सामान्य कार्यप्रणाली में कोई भी नोटिस/आदेश अधिकारियों द्वारा जी०एस०टी०एन० पोर्टल के माध्यम से ऑनलाइन ही तामील कराये जाते हैं जो कि अधिनियम की धारा -169 के अनुरूप ही है। जी०....
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....2332;ी.एस.टी. व्यवस्था की मूल अवधारणा से सुसंगत नहीं है तथापि जहाँ करदाता का पंजीकरण (Registration) नोटिस/आदेश की तिथि से पूर्व निरस्त किया जा चुका हो, उन परिस्थितियों में नोटिस/आदेश की तामीली जी०एस०टी०एन० पोर्टल पर उपलब्ध....
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....ारियों द्वारा जारी किए गए नोटिस, आदेश आदि को करदाता ने कब खोला-इसका कोई रिकॉर्ड लॉग (LOG) सिस्टम में नहीं बनता। इसलिए करदाता द्वारा नोटिस/अतिरिक्त नोटिस/आदेश किस तिथि को खोला गया है, इसकी जाँच पोर्टल के माध्यम सí....
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....327;या है कि धारा 169 में नोटिस/आदेश की सेवा के सभी तरीकों का विस्तृत प्रावधान है, और विभाग/ जीएसटीएन द्वारा इन्हीं प्रावधानों (विशेषकर धारा 169 (1) (c) और (d) का पालन किया जाता है। जीएसटी प्रणाली को पूरी तरह स्वचालित अप्रत्य....
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....2350;ें लम्बित उक्त वाद के सम्बन्ध में अपर महाधिवक्ता, श्री अनूप त्रिवेदी के साथ आयुक्त, राज्य कर, उ०प्र०, लखनऊ एवं अन्य विभागीय अधिकारियों द्वारा निम्न तिथियों में Zoom Meeting के माध्यम से वीडियों कॉफ्रेंसिंग की गयी, ज&#....
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....60;्तुत किए जाते हैं, जिनके आधार पर कर जमा (Tax Deposit), इनपुट टैक्स क्रेडिट (ITC) का Claim तथा रिफंड का दावा किया जाता है। न्याय-निर्णयन की कार्यवाही से असंतोष की स्थिति में करदाता विभागीय स्तर पर प्रथम अपील दाखिल कर राहत प्राप्....
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....354; भावना प्रभावित होगी। 5. यह कि निकट भविष्य में जीएसटी ट्रिब्यूनल के पूर्ण रूप से कार्यशील हो जाने पर करदाता को द्वितीय अपील के स्तर पर एक अतिरिक्त विधिक मंच उपलब्ध हो जाएगा। अतः मा० उच्च न्यायालय से विनम....
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....They may be one in a hundred, or less. On a query put to the learned ASGI (also appearing for the Union of India), as to the possible reason for the same, it has been candidly informed that the central revenue authorities have chosen to serve physical notices of proceedings and copies of orders, in addition to the service through electronic mode. Clearly, the Central Government has realised the difficulties arising from service effected through electronic mode, through the same Common Portal of the GSTN. Therefore, it may have taken a more pragmatic decision to service notices and orders through physical mode, as well. 21. Earlier, pursuant to order dated 08.10.2025, GSTN has filed Supplementary Counter Affidavit wherein it has been stated as below: "4. That the Hon'ble High Court, vide its order dated 08.10.2025, directed the GSTN to file supplementary affidavits in all cases in that batch to make necessary disclosures with respect to point nos. (i), (ii) and (iii) of paragraph no. 7 and 11 of the said order. The relevant paragraph is reproduced below for ready reference: 7. The GSTN may file a short affidavit disclosing: (i) the dates on which show-c....
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....'s order dated 08.10.2025, it is most respectfully submitted that GSTN shall examine the feasibility of introducing such features/mechanism on GST portal. However, it is respectfully submitted that the Section 169 of the GST Act provides for various modes of Service of Notices/Orders etc. 8. That it is most respectfully submitted that the aforesaid provision contained under Section 169 of CGST Act 2017 exhaustively prescribed inter-alia the method of service of notice/order which has been complied (more specifically subclause (c) and (d) under subsection 1 of Section 169 of the Act) with by the Deptt./GSTN. 9. That it is most respectfully submitted that GST system has been designed as per the provision stipulated under the CGST Act and Rules thereunder with the objective of establishing a fully automated indirect tax regime in the country. Any deviation or modification thereto may have a cascading impact, potentially destabilizing the structural and functional integrity of the GST system. 22. Another circumstance that we may notice before we proceed further is - the State of Uttar Pradesh remains the most populous State of the country and at present one tha....
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....payer who it seeks to serve, in his native language-Hindi. Again, we may take note - Hindi remains the language of the people of the State, besides being its official language. All communications issued by the State Government are in Hindi, including the Show Cause Notices and Adjudication Orders, in issue here. It is not only the official status of the language Hindi, but it is the underlying logic/rationale behind that status, that is relevant. Hindi is the language of the masses including the literate and the illiterate, in the State. However, apparently for technical reasons and not by way of design, the GSTN has only been able to work its Common Portal, in English, a language with which 10-15% of the population may be conversant, by some estimates. Clearly, it is a language known to tax professionals but the same is not true of all trade and business people, who the GSTN seeks to serve. 26. Therefore, there exists an underlying assumption on part of the GSTN and the revenue authorities that the large body of taxpayers may be able to work the Common Portal, if not by self, then through the professionals they may hire. If they were to work it themselves, they will first have ....
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.... reasonable opportunity of showing cause against the proposed order : Provided further that where the Appellate Authority is of the opinion that any tax has not been paid or short-paid or erroneously refunded, or where input tax credit has been wrongly availed or utilised, no order requiring the appellant to pay such tax or input tax credit shall be passed unless the appellant is given notice to show cause against the proposed order and the order is passed within the time limit specified under section 73 or section 74." (emphasis supplied) 29. Then, Section 161 of the State/Central Act reads as below: "Section 161. Rectification of errors apparent on the face of record.- Without prejudice to the provisions of section 160, and notwithstanding anything contained in any other provisions of this Act, any authority, who has passed or issued any decision or order or notice or certificate or any other document, may rectify any error which is apparent on the face of record in such decision or order or notice or certificate or any other document, either on its own motion or where such error is brought to its notice by any officer appointed under this Act or an office....
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....dence 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." (emphasis supplied) 31. Then, Rule 142 (1), (1A) and (2) of the Rules framed in the State/ Central Act reads as below: "142. Notice and order for demand of amounts payable under the Act. - (1) The proper officer shall serve, alongwith the - (a) Notice issued under Section 52 or Section 73 or Section 74 or Section 76 or Section 122 or Section 123 or Section 124 or Section 125 or Section 127 or Section 129 or Section 130, a summa....
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....nly on receipt of an acknowledgment of such electronic record by him, then unless acknowledgment has been so received, the electronic record shall he deemed to have been never sent by the originator. (3) Where the originator has not stipulated that the electronic record shall be binding only on receipt of such acknowledgment, and the acknowledgment has not been received by the originator within the time specified or agreed or, if no time has been specified or agreed to within a reasonable time, then the originator may give notice to the addressee stating that no acknowledgment has been received by him and specifying a reasonable time by which the acknowledgment must be received by him and if no acknowledgment is received within the aforesaid time limit he may after giving notice to the addressee, treat the electronic record as though it has never been sent. 13. Time and place of dispatch and receipt of electronic record.- (1) Save as otherwise agreed to between the originator and the addressee, the dispatch of an electronic record occurs when it enters a computer resource outside the control of the originator. (2) Save as otherwise agreed between....
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....network; (j) "computer network" means the inter-connection of one or more computers or computer systems or communication device through- (i) the use of satellite, microwave, terrestrial line, wire, wireless or other communication media; and (ii) terminals or a complex consisting of two or more interconnected computers or communication device whether or not the inter-connection is continuously maintained; (k) "computer resource" means computer, computer system, computer network, data, computer data base or software; (l) "computer system" means a device or collection of devices, including input and output support devices and excluding calculators which are not programmable and capable of being used in conjunction with external files, which contain computer programmes, electronic instructions, input data and output data, that performs logic, arithmetic, data storage and retrieval, communication control and other functions; (r) "electronic form" with reference to information, means any information generated, sent, received or stored in media, magnetic, optical, computer memory, micro film, computer generated micro fiche or similar d....
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.... of service have been provided under Section 169 of the State/Central Act, unless actual or deemed/constructive service of the show cause notice and/or order exists, neither the noticee may comply with such a notice nor the aggrieved person may comply with or file appeal against the adjudication order. 36. Learned counsel for the petitioner would further submit, uploading an order or notice on the Common Portal, is not the same as 'service' contemplated under Section 169 of the State/Central Act. Read in conjunction with Section 13(1) and (2) of the Information Technology Act, 2000, the Common Portal remains a 'computer resource' of the GSTN, but not the petitioners. He further denies existence of any contract between the GSTN, and the petitioners as may allow for an interpretation to arise, that uploading of a notice and order on the Common Portal amounts to 'deemed service' of the notice or order, on the petitioner. 37. Ms. Pooja Talwar, learned counsel, has largely adopted the submissions advanced by Mr. Pranjal Shukla. Further, it is her submission, no satisfaction has been recorded in the adjudication order as to the mode of service of the Show Cause Notice. Neither such....
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....s but the phrase 'making it available'. Thereby the legislative intent has been clearly expressed - that the document or communication should be readily/easily/conveniently available to the noticee/assessee/addressee. If the document sought to be served is hidden on the portal as may require expert knowledge or skillful handling of the Common Portal, necessarily involving more than elementary knowledge of the working of computers and websites, it may not be readily inferred that by merely uploading the document on the Common Portal, the same had been made available to the addressee/noticee/assessee. 42. Further, the memorandum of issue of GSTN enlists its main objective as: "1. To promote trade and commerce by providing easily accessible, quick and efficient information technology and communications related services to the public and Government. 2. To assist and engage with various stakeholders in preparing information technology and communications related infrastructure for smooth roll out of any information technology driven initiatives and other e-governance initiatives of the Government or any department or agency of the Government, specifically for....
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....o allow for such a consequence or interpretation of the law. Reliance has been placed on the decision of the Supreme Court in State of West Bengal vs Sadan K. Bormal & Anr.; (2004) 6 SCC 59. 46. Second, he has stressed the meaning to be given to the word 'communicate' used in Section 107 of the State/Central Act. According to him both for the purposes of compliance of an adjudication notice or order and for the purpose of challenge thereto, the notice/order must be 'communicated' (as a fact) to the noticee/assessee. Though for the purpose of effective communication channels/modes of service have been created by the legislature under Section 169 of the State/Central Act allowing for electronic mode, unless service of notice or order is made with the object and purpose of adequate communication to the noticee/assessee, service would remain incomplete and purposeless. Unless the vital stake holder in the tax regime, that the noticee/assessee is, is served such notice and order - effectively communicating the same to him, the intent/purpose of that service of notice or decision of the adjudicating authority or statutory authority under the State/Central Act, may remain unful....
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....lied on the provisions of the Information Technology Act, besides referring to Section 169 of the State/Central Act. He has heavily relied on the provisions of Section 2(r)(d) and Section 13 and 14 of the Information Technology Act. According to him, any information generated/sent/received or stored in any electronic record would lead to a dispatch of and its receipt in accordance with Section 13 of the State/Central Act, the moment such electronic record enters the computer resource outside the control of the originator, here, the adjudicating authority. To the extent, the show-cause notice and/or orders were uploaded by the Adjudicating authority on the Common Portal which is a computer resource outside the control of the State/revenue authorities, due dispatch is established. 52. Second, referring to the forms filled up by the assessee while seeking registration under the State/Central Act, it has been stated that an agreement exists between the revenue authorities and GSTN. Also, they have duly disclosed the e-mail ID as also from other details used to authenticate and limit the access to the user dashboard by the registered person, to the exclusion of all others. Relying on....
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....ke no difference to the extent that service made through electronic mode is valid service, as may admit of no doubt. 56. Further, reliance has been placed on the decision of the Delhi High Court in M/S Mathur Polymers vs Union of India; 2025:DHC:7435-DB, the issues being raised before this Court are described to have been answered in favour of the revenue and against the assessee's, by the Delhi High Court by relying on its earlier decision in Rishi Enterprises vs Additional Commissioner, Central Tax Delhi; 2025:DHC:7353-DB. To that extent, it has been submitted that uploaded notice or order on the Common Portal would invite inference of deemed service of such notice/order on the addressee. He has also relied on State of Punjab vs Khemi Ram, (1969) 3 SCC 28; Kumar Jagdish Chand Sinha vs CIT [1996] 86 Taxman 122 (SC); Madan Lal vs State of UP; (1975) 2 SCC 779; Assistant Transport Commissioner Lucknow & Ors. vs Nand Singh; (1979) 4 SCC 19. 57. Having heard learned counsel for the parties and having perused the record, first, the fact aspects may be noted. Undeniably, the petitioners before the Court in this batch and the other petitioners who have been dealt with in terms of t....
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....t also led to a practice/norm. Assessee who may not have been fully/properly heard by the Assessing Authorities, could go back to them, for full, effective redressal of their grievances. That power of the appeal authorities has been taken away under the State/Central Acts. 61. Fourth, the normal period of limitation to file appeal though prescribed, similarly, in view of the applicability of Section 5 of the Limitation Act, delay in filing appeals could be explained under the old regime, beyond the minimal period of 30 days. However, upon enforcement of the GST laws, that discretion has been taken away from the appeal authorities. At present, they can only condone delays up to 30 days. That too requires a behavioral change with the assessee, to understand that delay in filing appeal may not be condoned, beyond 30 days. Thus, the general power of the appeal authority to condone delays, has been conditioned and limited, to 30 days only. 62. Those difficulties arising from doing away with pre-existing norms and practices may not govern the outcome of this batch of writ petitions. However, it does indicate, the extent to which breach of rules of natural justice both with respect ....
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....e by abandoning service through physical mode, completely, except where registration itself may have been cancelled. Thus, the revenue authorities (Central and the State) are divided in their opinion - as to the most desirable mode of service of notice and the orders on the assessee's/taxpayers. Certainly, on the face of it, appreciation made by the Central revenue authorities appears to lean in favour of the contentions advanced by the learned counsel for the petitioners, that at present, service through electronic mode (only), may not be most desirable decision. Yet, that divergence of policy may also not lead to the conclusion to be drawn to the legalities of the issue. However, we do recognize - that policy divergence is indicative of the ground realities in which the same/similar taxation laws of the State/Central Acts are being implemented, By two different governments, one State and the other Central. 66. Looking at Section 169 of the State/Central Act, it first prescribes six modes of service under sub-section (1) of that Act. In the second part through sub-sections (2) and (3), it creates a legal fiction of deemed service in certain circumstances. To decide the issue ca....
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....erate omission on part of the legislature is a conscious act of wisdom which is not open to contest in these proceedings. 70. Suffice to note, the clear legislative intent that emerges on the cojoint reading of the Section 169(1), (2) and (3) is - in the first place, six modes of service have been prescribed, of which five are in the alternate i.e. at the discretion of the revenue authorities, while the sixth may be adopted only if none of the other/first five is 'practicable'. Second, the effect of deemed service may arise only with respect to modes of service (a), (b) only to the extent it alludes to dispatch made by speed post but not through courier and (e) upon publication in newspaper but no other publication and; (f) by affixation, if that mode be adopted, in accordance with law. 71. In Sadan K. Bormal (supra), the principle governing the provision creating the fiction in law, was examined by the Supreme Court, and it was unequivocally laid down as below: "So far as interpretation of a provision creating a legal fiction is concerned, it is trite that the court must ascertain the purpose for which the fiction is created and having done so must assume all those ....
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....Common Portal, the GSTN and the revenue authorities do not have the means (at present) to ascertain the time when that electronic document/record may have been accessed or retrieved or downloaded or viewed or opened by the noticee/taxpayer, either on the Common Portal or the e-mail address of the assessee. While a general assurance has been offered for such a measure to be developed later, neither such measures exist nor GSTN has made any commitment when such measures may be made available. 75. Therefore, on the factual aspect of the issue, we have no hesitation in inferring the date and time of service of any matter uploaded on the Common Portal or dispatched through e-mail, is not known to the revenue authorities or GSTN. In many cases the taxpayer feels aggrieved by the ex parte nature of the orders passed. While no submission may be entertained as to the absence of powers to recall ex parte orders and while there is no challenge to any provision of law curtailing the powers of the appeal authority to remit/remand to any Adjudicating Authority, it is therefore most crucial that a limited opportunity of appeal made available to the assessee/tax-payer under Section 107 of the A....
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....here and chargeable with income tax under s.100 Sch. D Case 4 of the Income Tax Act 1842 (c.35) did not include sums only constructively received in Great Britain, in yearly accounts of profits and loss (Gresham Life Assurance v Bishop [1902] A.C. 287, weakening effect of, if not over-ruling, Universal Life Assurance v Bishop, 68 L.J.Q.B. 962; following Scottish Mortgage Co of New Mexico v Mc Kelvie, 24 S.L.R. 87, and Norwich Union Fire Insurance v Magee, 44 W.R. 384). See further Forbes v Scottish Provident Institution, 33 S.L.R. 228. Sums actually received in the United Kingdom in respect of a business abroad were, prima facie, profits chargeable with income tax (Scottish Provident Institution v Allan [1903] A.C. 129; The Same v Farmer, 6 Tax Cas. 34). 77. In Raja Harish Chandra Raj Singh vs Deputy Land Acquisition Officer & Anr.; 1961 SCC OnLine SC 140, an issue arose if the limitation to seek a reference would commence from the date of the award as marked by the authority framing such an award, or the date of its communication to the person concerned. The High Court had taken a view construing the language of section of the Land Acquisition Act, literally - as the date marke....
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....date on which such order may have been signed and put beyond the control of the issuing authority, as may give rise to 'communication', in the first sense. It was thus observed: "9. The words "from the date of decision or order" used with reference to the limitation for filing an appeal or revision under certain statutory provisions had come up for consideration in a number of cases. We may state that the ratio of the decisions uniformly is that in the case of a person aggrieved filing the appeal or revision, it shall mean the date of communication of the decision or order appealed against. However, we may note a few leading cases on this aspect. 10. Under Section 25 of the Madras Boundary Act, 1860 the starting point of limitation for appeal by way of suit allowed by that section was the passing of the Survey Officer's decision and in two of the earliest cases, namely, Annamalai Chetti v. Col. J.G. Cloete [ILR (1883) 6 Mad 189] and Seshama v. Sankara [ILR (1889) 12 Mad 1] it was held that the decision was passed when it was communicated to the parties. In Secretary of State for India in Council v. Gopisetti Narayanaswami Naidu Garu [ILR (1910) 34 Mad 151 : (1....
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....tio of date of the knowledge of the order applicable to an aggrieved party is not applicable for the purpose of exercising suo moto power. Similarly in another decision reported in Viswanathan Chettiar v. CIT [(1954) 25 ITR 79 (Mad)] construing the time-limit for completion of an assessment under Section 34(2) of the Income Tax Act, 1922, which provided that it shall be made "within four years from the end of the year in which the income, profit and gains were first assessable," it was held that the time-limit of four years for exercise of the power should be calculated with reference to the date on which the assessment or reassessment was made and not the date on which such assessment or reassessment order made under Section 34(2) was served on the assessee. 12. It may be seen therefore, that, if an authority is authorised to exercise a power or do an act affecting the rights of parties, he shall exercise that power within the period of limitation prescribed therefor. The order or decision of such authority comes into force or becomes operative or becomes an effective order or decision on and from the date when it is signed by him. The date of such order or decision is th....
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....r determining the limitation. The ratio of this distinction may also be founded on the principle that the government is bound by the proceedings of its officers but persons affected are not concluded by the decision". (emphasis supplied) 79. Coming to the law cited by the learned Additional Advocate General, the decision in the case of State of Punjab vs Khemi Ram; (1969) 3 SCC 28 relied by the learned Additional Advocate General may not be applicable to the present facts. It also does not run contrary to the decision in Raja Harish Chandra Raj Singh (supra). In that case order of suspension was published in the Official Gazette, besides dispatch by telegram mode, and charge sheet physically dispatched to the delinquent employees' home address. Publication of any document in the Official Gazette acquires a different connotation and imparts a different texture to the issue of 'service'. The publication made in the Official Gazette is information given to the public at large as may never give any opportunity of denial of service. However, we may hasten to act no such publication exists in this case. 80. Second, more crucially, the core issue involved in that decision was the....
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....le a revised return under sub-section (5) of section 139 of the Income- tax Act, 1961 ? 2. Whether, on the facts and in the circumstances of the case, the assessments made by the Income-tax Officer for the assessment years 1964- 65 and 1965-66 were within the time-limit prescribed in section 153(1)(b) of the Income-tax Act, 1961 ? 3. Whether, on the facts and in the circumstances of the case, the Tribunal was correct in law in holding that the cases for the assessment years 1964-65 and 1965-66 were such as falling within clause (c) of sub- section (1) of section 271 ?" 83. In view of the limited questions that arose before the Supreme Court, not directly dealing with the issue of 'communication', the observation made in paragraph no. 15 of the said report does not contain the ratio of the said decision. In that, in the absence of any recital regarding initiation of proceedings and its communication during the earlier proceedings, the consequential orders passed were found invalid. Plainly, the said decision also does not apply to the present facts. 84. Then, in Madan Lal vs State of U.P. & Ors.; (1975) 2 SCC 779, again it was observed as below: "8. ....
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.... against the said order by reference to the making of the order must mean either actual or constructive communication of the said order to the party concerned." 85. In Assistant Transport Commissioner, Lucknow & Ors. vs Nand Singh; (1979) 4 SCC 19, Raja Harish Chandra Raj Singh (supra) was followed and it was further observed as below : "2. In our opinion, the judgment of the High Court is right and cannot be interfered with by this Court. Apart from the reasons given by this Court in the earlier judgment to the effect that the order must be made known either directly or constructively to the party affected by the order in order to enable him to prefer an appeal if he so likes, we may give one more reason in our judgment and that is this: It is plain that mere writing an order in the file kept in the office of the Taxation Officer is no order in the eye of law in the sense of affecting the rights of the parties for whom the order is meant. The order must be communicated either directly or constructively in the sense of making it known, which may make it possible for the authority to say that the party affected must be deemed to have known the order. In a given case, the....
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....y cannot tear or draft a different order. Date of communication of the order to the parties whose rights are affected is not the relevant date for purpose of deciding whether or not the order was passed within the prescribed time. 37. The second principle relates to computation of period of limitation for a party affected by the order or decision, who invokes remedy by way of appeal, revision, etc. The rule is that the period of limitation for invoking the remedy starts from the date the order is communicated to the party or the date when it is pronounced or published, whereby the party affected has a reasonable opportunity of knowing of the passing of the order or its content. Communication in the second sense is different from communication in the first sense, i.e., the first principle. Communication in the second sense must be satisfied before the decision is said to be conclusive or binding. This principle is not dependent upon the provisions of a particular statute but under the general law. 38. Pertinently, in M.M. Rubber and Company (supra) it was observed that knowledge of the party affected by the decision may be either actual or constructive. Knowledge o....
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....esented for clearance. As a fact it was clear that presentation of documents preceded the time when the law was amended upon issuance of notification through electronic mode. The rate of duty being applicable at the time of import, that case was decided on the strength of time of presentation of bills of entry, for clearance. Clearly, the issue was wholly different from the present case. 89. In Suman Jeet Agarwal vs Income Tax Officer (2022) 143 taxmann.com 11 (Delhi), again the issues raised were different. There was no dispute as to issue of reassessment notice, through email. At the same time, validity of reassessment notices and therefore, assumption of jurisdiction of reassessment was decided on the own facts of that case. Where notices were found issued (even through electronic mode), within limitation, those proceedings were found valid. 90. In Rapiscan Systems Pvt Ltd. vs ADIT (Income Tax) [2025] 170 taxmann.com 753 (Telangana) the interpretation made to section 144C (13) of the Income Tax Act, 1961 wherein for the purpose of limitation the date on which direction was 'received' was relevant. As discussed above, though the concept of 'receipt' is contained in the IT A....
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....he learned Additional Advocate General, has relied on the provisions of Section 12 and 13 of the Information Technology Act. Section 13 is a provision that creates presumptions as to time and place of dispatch and receipt of certain electronic records. As to actual dispatch of an electronic record - either to upload notice or orders or dispatch of email, facts are admitted. But the petitioners here do not admit having received e-mail alerts. In any case, it is not the say of the revenue authorities that they had sent through e-mail communications, entire notices or orders as may have enabled the recipients/addressees/ taxpayers, to file appeal thereagainst. They only claim to have sent information about such notices and orders. Therefore, it may never be claimed that by sending such intimation the addressee/recipient had been 'communicated' the notice or the orders or their contents, necessary to be 'communicated', to file any appeal thereagainst. 94. At the same time, Section 13(2) of the IT Act also provides a deeming fiction of receipt of electronic record arising the moment electronic document enters the 'designated computer resource'. However, if such a 'computer resource' ....
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.... such acknowledgement has not been sought [in terms of Section 12(3)] it would be over simplistic to equate the two distinct modes of service, one through physical mode and the other through electronic mode, to allow for the consequences of 'deemed service' to arise, in both. 98. Further, it is doubtful if effect of (Show Cause Notice or Order) 'communicated' to the assessee may arise in law, merely on the strength of time of such notice or order entering the Common Portal of the GSTN, from where it is possible for the addressee to retrieve such document to record. It is akin to the early stages of postal service where a letter/communication dispatched by post was sorted and kept at the Post Office nearest the addressee, from where he could collect it, at this convenience. In the absence of time stamp being available, when the addressee may have retrieved that communication and further in the absence of any notice with acknowledgment, that determination is not possible or feasible. 99. Coming to two decisions of the coordinate bench, In Atlantis Intelligence Ltd. (supra) in paragraph-4 of the report, it has been recorded as below: "4. It is admitted by the petitioner....
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.... do not proceed to determine the question as to whether as per sub clause 2 of section 169 once the service has been effected as per sub clause (c) & (d) of section 169, it shall be deemed to have been served on the date it is tendered." (emphasis supplied) 103. Thus, the coordinate bench had left the issue open but only refused to entertain the writ petition for reason of statutory remedy of appeal available. Thus, the two decisions of coordinate benches have not taken a view, different from the one proposed to be taken by us. Hence, we find no occasion to refer the matter to a larger bench. Insofar as the decisions of the other High Courts taking a contrary view, are concerned, we regret not being persuaded to take that view - that uploading a document on the Common Portal is enough communication or service for the purpose of Section 107 of the State/ Central Acts. For the reasons noted above, we find that the deeming fiction of law created under Section 169(2) and (3) of the State/Central Act read with Sections 12 and 13 of the IT Act cannot be enlarged - to benefit the revenue, though no prejudice may be caused to it, otherwise. To equate uploading of a document on the Co....
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....choice that the revenue authorities may otherwise make between the modes specified in clauses (a) to (e). (iv) The deeming fiction of law leading to constructive service, is available only with respect to service effected through modes specified in Clauses (a), (b), (e) and (f) (where applicable), of Section 169(1) of the Act. (v) By way of necessary corollary, the deeming fiction of law leading to constructive service is not available with respect to Clauses (e) and (f) of Section 169 (1) of the State/Central Acts, in view of the direct provisions of those Acts. (vi) The IT Act is clearly applicable to the State/Central Acts, to the extent its provisions may be invoked in matters not squarely covered by or provided for under the State/Central Act. To that extent the provisions of Sections 4, 12 and 13 are invokable with reference to 'despatch' & 'receipt' service attempted through electronic modes but not to actual or constructive service provided under Section 169 of the State/Central Acts, there is no conflict between the two sets of legislation, one relating to GST laws and the other to IT laws. (vii) To the extent there is no acknowledgement....
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....l revenue authorities, in the same situation. The assessee's being one class of persons who exist in a singular tax eco-system created by uniform GST laws that are pari materia to each other, from beginning to end, i.e. the State Act and the Central Act, the fact that in some proceedings drawn by authorities under the Central Act, notices and orders may be issued through physical mode also, while in another set of proceedings (against the same class of persons), drawn by the State authorities, notices and orders may be issued only through electronic mode, is not desirable. It creates confusion by bringing in duality and therefore uncertainty of procedures being followed, to implement a single substantive law, leading to doubts and conflicts that have given rise to the present wholly avoidable litigation. (xi) Suffice to note, wherever an assessee files an appeal declaring that it is within time from the date of actual 'communication' of the order, a presumption may arise in favour of the assessee on the strength of such declaration. The burden to prove otherwise, may lie on the revenue - to establish that actual 'communication' of the contents of the Show Cause Notice or a....