Like every statute, GST law also provides for modes in which notices, orders and letters can be served on the taxpayers. With technological advances and more so because GST is a technologically driven taxation regime, departments are making tremendous use of electronic modes for serving of notices and orders. This service of notice and order through electronic modes including service on the GST Common portal has created a lot of trouble for the taxpayers as a taxpayer cannot be expected to login every once in a while, and visit the notices and orders section to check whether a notice has been issued to him or an order has been passed against him.
Department has to a large extent done away with sending physical notices to the taxpayers as the process of sending physical notices is not only a time and manpower consuming process but is also an expensive one. Due to this reason a number of times taxpayers do not receive timely information of notices and orders, on account of which subsequent compliances by them become very difficult. Thus leading to orders being passed against them for which taxpayers are not in position to take timely action on account of zero knowledge of search orders.
Section 169 deals with service of notice and orders legal text of which is reproduced as under-
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 manager or Authorised representative or an advocate or a tax practitioner holding authority to appear in the proceedings on behalf of the Taxable person or to a person regularly employed by him in connection with the business, or to any adult member of family residing with the Taxable person; or
(b) by registered post or speed post or courier with acknowledgement due, to the person for whom it is intended or his Authorised representative, if any, at his last known place of business or residence; or
(c) by sending a communication to his e-mail 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, 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.
Subsection one provides exhaustive list of modes of service of notice. Clause a of the said subsection discusses direct service to the taxpayer or his manager or authorized representative or employee or any other family member. Later clauses discuss service by mode of email speed post or Courier with acknowledgement due.
Clause d contains the most problematic mode of service that is service on common portal of the taxpayer. This is the most widely used mode of service. This creates a lot of issue as the taxpayer cannot login into the Common portal just to search whether a new notice has been issued to him.
If for some reason aforementioned modes cannot be adopted then the mode of publishing the same in newspaper circulated locally in the area of residence of the taxpayer or the Place of business of the taxpayer is use. If none of the modes seem practicable the last mode that is used is affecting the notice or the order on the address or the last known address of business or residence of the taxpayer . As a last resort these notices and orders can be affixed on the notice board of the concerned authority.
Lately a lot of appeals u/s 107 have been rejected on the ground that appeal was not filed within three months or four months as the case may be of the order being served on the Common portal of the taxpayer. In this case it is relevant to refer subsection 1 of section 107 and the extracts of which is also reproduced as under-
“(1) Any person aggrieved by any decision or order passed under this Act or the State Goods and Services Tax Act or the Union Territory Goods and Services Tax Act by an Adjudicating authority may appeal to such Appellate Authority as may be prescribed within three months from the date on which the said decision or order is communicated to such person."
The lawmaker’s wisdom clearly indicates that the period for filling of appeal is to be reckoned from the date on which the Order under consideration force communicated to the appellant. To emphasize this view of the undersigned extracts of provisions of section 161 of the Act is also being reproduced as under-
“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 officer appointed under the State Goods and Services Tax Act or an officer appointed under the Union Territory Goods and Services Tax Act or by the affected person within a period of three months from the date of issue of such decision or order or notice or certificate or any other document, as the case may be:"
It Is only in the section of rectification of mistake apparent from record that lawmakers intended to reckon the period of rectification from the date of issue of order whereas under section 107 the period has specifically been mentioned to be reckoned from the date on which order is communicated to the appellant.
The confusion gets further aggravated on account of subsection two of the section 169 which states-
“(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)."
The date of service as per subsection 2 shall be deemed to be the date on which the order is either tendered directly or otherwise or is published or a copy thereof is affixed. This view also finds its backing from the reasons put before the hon’ble Justice of Allahabad High Court in case of M/S Virender Kumar Projects Pvt Ltd. wherein the Writ Tax Application No. 945/2023  63 TAXLOK.COM 154 (Allahabad) was admitted taking into consideration deeming provisions of subsection 2. Extracts of the same is reproduced as under-
“….that the respondent no. 2 has failed to appreciate the word "communicated" used in section 107 of the GST Act in contrast to the word "served" used in section 169 of the GST Act. Therefore, the order dated 03.12.2021 may have been served by making it available on the portal as provided under section 169 of the GST Act, but the same will not amount to communication of the order as the order can be said to be communicated only when the person concerned comes to know about the same….."
This Writ application is yet to be heard and orders have not yet been passed hence only time would tell whether this subsection would provide any relief to the taxpayers. The Income Tax Act that the appeal before CIT(Appeals) can be made even after the period of 30 days provided that the taxpayer justifies such delay with reasonable explanations. Such provisions are also necessary to be incorporated under the GST law to provide taxpayers with Bonafide grounds to seek justice. The present law does not enable the taxpayers to get justice even in cases where they have strong Bonafede and genuine reasons for filing of delayed appeals.
CA Pranay Jain is a young and aspiring Chartered accountant. He qualified Chartered Accountancy Course in 2021 and has a well-established practice in various fields of taxation and auditing, with his core area of practice being in the field of litigation i.e., handling assessment and appeal-related matters and representing assesses before various tax departments.
He is also socially active on LinkedIn at linkedin.com/in/capranayjain
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