A V Bhanoji Row Versus Assistant Commissioner (ST)>2023(02)LCX0186

2023(02)LCX0186

Andhra Pradesh High Court

A V Bhanoji Row

Versus

Assistant Commissioner (ST)

WRIT PETITION No. 2830 of 2023 decided on 14-02-2023

THE HON

THE HON’BLE SRI JUSTICE A.V. SESHA SAI

AND

THE HON’BLE SRI JUSTICE VENUTHURUMALLI GOPALA
KRISHNA RAO

WRIT PETITION No.2830 of 2023

ORDER:- (per A.V. Sesha Sai, J)

Heard, Sri S.Dwarakanath, learned Senior Counsel representing Sri Karthik Ramana Puttam Reddy, learned counsel for Writ Petitioner and Sri T.C.D Sekhar, learned Government Pleader for Commercial Taxes.

2. The issue in the present Writ Petition arises under the Goods and Service Tax Act,2017.

3. Challenge in the present Writ Petition is to the order of the 1^st respondent, dated 23-11-2022 under Section 74(9) of Goods and Service Tax Act (for short ‘the act’) read with 142(5) of the GST Rules 2017 and DRC-07, notice dated 23-11-2022, for the tax period 2017-18, 2018-19 and 2019-20, as well as the show cause notice dated 22-10-2022 and DRC-01 notice dated 02-10-2022 issued by the 1st respondent and uploaded in the GST common portal.

4. The essence of the case of the petitioner, in the present Writ Petition is, since the impugned proceedings do not contain the signature of the officers concerned, the same are required to be treated as void and in-operative

5. Sri T.C.D.Shekar, learned Government Pleader, seeks to justify the impugned action by contending that, in view of the language of Section 160 and 169(d) of the Act,2017, the objection of the learned Senior Counsel is untenable and unsustainable. Lack of signatures on the impugned proceedings is not in controversy. In order to consider the sustainability and the contentions advanced by the learned Government Pleader, it would be appropriate and apposite to refer to Sections 160 and 169 of the Goods and Service Tax Act,2017. The said provision of law is as follows:-

Section 160 of the Goods and Service Tax Act, 2017:

(1) No assessment, re-assessment, adjudication, review, revision, appeal, rectification, notice, summons or other proceedings done, accepted, made, issued, initiated, or purported to have been done, accepted, made, issued, initiated in pursuance of any of the provisions of this Act shall be invalid or deemed to be invalid merely by reason of any mistake, defect or omission therein, if such assessment, re-assessment, adjudication, review, revision, appeal, rectification, notice, summons or other proceedings are in substance and effect in conformity with or according to the intents, purposes and requirements of this Act or any erstwhile law

(2) The service of any notice, order or communication shall not be called in question, if the notice, order or communication, as the case may be, has already been acted upon by the person to whom it is issued or where such service has not been called in question at or in the earlier proceedings commenced, continued or finalized pursuant to such notice, order or communication

Section 169 of the Goods and Service Tax Act, 2017:

(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 authorized 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 authorized 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.

6. A reading of Section 160 of the Act makes it very much clear and candid that the safeguards contained therein cannot be made applicable for the contingency in the present case. Section 169 of the Act, which deals with the service of notice, enables the department to make available any decision, order, Summons, Notice or other communication in the common portal. In the guise of the same, the signatures cannot be dispensed with. In the considered opinion of this court, the aforesaid provisions of law would not come to the rescue of the respondent herein, for justifying the impugned action.

7. For the aforesaid reasons, this Writ Petition is allowed, setting aside the impugned order of the 1st Respondent, dated 23-11-2022 and the DRC-07 notice, dated 23-11-2022 for the tax period 2017-18,2018-19 and 2019-20, as well as the show cause notice dated 22-10-2022 and DRC-01 notice, dated 22-10-2022 issued by the 1st Respondent and uploaded in the GST common portal. However, this order will not preclude the respondents from proceeding in accordance with law, in the light of the observations made Supra. There shall be no order as to costs.

As a sequel thereto, miscellaneous petitions, if any pending, shall also stand closed.

___________________
A.V. SESHA SAI, J

_____________________________
V.GOPALA KRISHNA RAO, J

Date: 14.02.2023