No, the Honorable Delhi High Court in the case of Anhad Impex v. Assistant Commissioner [2024 TAXONATION 340 (DELHI)] held that merely uploading a Show Cause Notice under the category "Additional Notices" instead of "Notices" on the GST portal does not constitute sufficient intimation to the taxpayer. Consequently, the subsequent demand order passed without giving the Petitioner a proper opportunity to respond to SCN was set aside, and the Court directed that SCN be re-adjudicated after affording a proper opportunity of hearing to the Petitioner.
The Honorable Delhi High Court observed that the perusal of the Impugned Order showed that it categorically recorded that the Petitioner had not filed any reply or appeared in person in response to SCN. This indicated that the Petitioner did not have a proper and timely intimation of SCN. Further noted that the uploading of the SCN under the category "Additional Notices" instead of "Notices" on the GST portal, which is the standard practice followed by the tax authorities, had resulted in the Petitioner missing out on the intimation of SCN. The Honorable Court opined that merely uploading the SCN on the portal, especially under the “Additional Notices” category, which is not easily accessible or discoverable by the taxpayers, cannot be considered as sufficient intimation or compliance with the principles of natural justice and the provisions of the CGST Act.
The Honorable Court relied on the judgment in the case of East Coast Constructions & Industries Ltd. v. Asstt. Commissioner (ST) [2023 TAXONATION 923 (MADRAS)] wherein the Honorable High Court of Madras has noticed that communications were placed under the heading of "View Notices and Orders" and "View Additional Notices and Orders". The Honorable Madras High Court had directed the respondents to address the issue arising out of the posting of information under two separate headings. According to the petitioner, the Menu "View Additional Notices and Orders" were under the heading of "User Services" and not under the heading "View Notices and Orders".
Author’s Comments-
Although Section 169 of the CGST Act, 2017 specifies 14 different ways/modes of servingany decision, order, summons, notice, or other communication under the Act, care must be taken by the authorities not to simply pick and choose any option, rather the best possible option must be chosen by which it is mostly likely to reach the notice. The notice or anyothercommunication cannot be termed to be served until it has reached the intended notice.
Violation of principles of natural justice is a failure of due process. This violation renders the process arbitrary and when executive action is arbitrary it violates articles 14, 19, and 21 of the Constitution. Reference may be made to the jurisprudence in the case of Menaka Gandhi v. UOI AIR 1978 SC597, which illuminates understanding about the ‘role’ of a valid notice in any proceeding, however obvious the conclusion and consequent treatment might be.
In the author’s considered opinion, it is immaterial whether the notice was uploaded on "View Notices and Orders" tab or "View Additional Notices and Orders" tab. The only aspect to consider is whether or not the intended notice was served to the intended notice or not.
Topic-Anhad Impex v. Assistant Commissioner
Citation-2024 TAXONATION 340 (DELHI)
CA Ritesh Arora
Comment: