JANUARY 15, 2025

By Vijay Kumar

WHAT's the deal with service? And no, I'm not talking about how polite your GST Inspector is. I am about the kind of service that sends chills down the spines of taxpayers: serving notices under GST! Section 169 of the CGST Act is our superhero here.

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.

In other words, the modes of service are:

a. Direct Delivery: Someone can knock on your door holding a notice like it's a top-secret document. They can send in a messenger, a courier, or even your friendly neighbourhood tax practitioner who seems to know too much about your business.

b. Registered or Speed Post: Think of it as sending a love letter-but it's about taxes. And trust me, love letters won't leave you in the dark like these notices sometimes do!

c. E-mail: Because nothing says "I care" like slipping a notice into someone's inbox without saying hello first. Just make sure you check your spam-it could be hiding in there like your last pizza receipt.

d. Common Portal: Picture a whimsical portal where all the notices gather-like a tax-themed wonderland where you're more likely to stumble upon a hefty tax bill than a mythical creature.

e. Newspaper Publication: Yes, if all else fails, they might just put it in the local paper. Goodbye privacy, hello, "Did you see that notice about Tarun's tax troubles?"

f. Good Old Affixing: In extreme cases, they might just tape it to a conspicuous wall-a real sticky situation.

Can an order, summons, notice or other communication under GST be sent by any of the methods (a) to (f) as specified in Section 169(1) or is there any sequence or compulsory steps?

In a case decided by the Madras High Court last week, the Department uploaded the notices/orders only in the web portal and not by any other modes as prescribed under Section 169.

The petitioners lack familiarity with the Department's portal and, due to their limited knowledge of information technology, depended on practitioners to file their returns. The practitioners uploaded their own phone numbers and e-mail IDs for receipt of alerts and in most of the cases, these practitioners have not informed the assessees either the updating in the portal or the receipt of the e-mails which have kept the assessees in dark.

They submit that even though the provisions under Section 169 (1) (a) to (f) are disjunctive, they should be read conjunctively, failing which, the basic principles of natural justice would be violated. They submit that Clauses (a) to (c) of sub section (1) of Section 169 should be read as alternative.

There should not be any problem for the department to

a. give the notice in person or to the authorised person or

b. send it by registered post or

c. send it by email

before resorting to other modes like

d. making it available on the common portal; or

e. publication in a newspaper

f. affixing it in some conspicuous place

Clauses (a) to (c) would appear alternative and if it was not practicable, then Clauses (d) to (f) can be followed. Interpreting Section 169 in such a manner would effectively comply with the principles of natural justice and also condition stipulated by Sub-section (3) to Section 169 which mandates that when such decisions, orders, summons, notices or any communication sent by Registered Post or speed post, it shall be deemed to have been received by the assessees, unless the contrary is proved.

A conjoined reading of Sub-Section (1)(2) & (3) of Section 169 would suggest that the Department is obliged to comply with the Clauses (a) to (c) alternatively and thereafter, comply with Clauses (d) to (f).

Even though Clause (f) has also been proceeded with the word 'or' indicating it to be disjunctive / an alternative mode of services, a reading of the Clause (f) would indicate that Clause (f) could be resorted to, if any of the Clauses preceding it, was not practicable. Here also, Clause (f) makes it imperative that such affixture shall be in a conspicuous place and the last known business or residence of the assessee.

Therefore, the object of Section 169 is for strict observance of the principles of natural justice.

In an order dated 06 01 2025 (2025-TIOL-55-HC-MAD-GST), the Madurai Bench of the Madras High Court held:

Section 169 mandates a notice in person or by registered post or to the registered e-mail ID alternatively and on a failure or impracticability of adopting any of the aforesaid modes, then the State can, in addition, make a publication of such notices/ summons/ orders in the portal/ newspaper through the concerned officials.

A mere uploading in the site would not do.

The position under the Central Excise Act.

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 post with proof of delivery or by courier approved by the Central Board of Excise and Customs constituted under the Central Boards of Revenue Act, 1963 (54 of 1963) to the person for whom it is intended or his authorised agent, if any;

(b) if the decision, order, summons or notice cannot be served in the manner provided in clause (a), by affixing a copy thereof to some conspicuous part of the factory or warehouse or other place of business or usual place of residence of the person for whom such decision, order, summons or notice, as the case maybe, is intended;

(c) if the decision, order, summons or notice cannot be served in the manner provided in clauses (a) and (b), by affixing a copy thereof on the notice board of the officer or authority who or which passed such decision or order or issued such summons or notice.

(2) Every decision or order passed or any summons or notice issued under this Act or the rules made thereunder, shall be deemed to have been served on the date on which the decision, order, summons or notice is tendered or delivered by post or courier referred to in sub-section (1)] or a copy thereof is affixed in the manner provided in sub-section (1).

Thus, in the Central Excise Act, there was (is) a sequence – it was one after the other not one or other. Why the change in GST law? That is another mystery of GST - any law designed to simplify will complicate things further.

I recall a case that I reported in 2015. 2015-TIOL-154-SC-CX

In this case, the assessee lost at every stage - the Assistant Commissioner, the Commissioner (Appeals), the CESTAT and the High Court, but finally succeeded in the Supreme Court.

The Department served an Adjudication Order dated 30.3.2012 on the ‘Kitchen boy' of the assessee on 03.04.2012. And the poor assessee had to go all the way up to the Supreme Court which noted that Sub-section (a) of Section 37C states that any decision, order, summons or notice may either be sent by registered post with acknowledgement due to the person for whom it is intended or his authorized agent.

The Supreme Court made certain vital observations, which every officer of the Department should always keep in mind.

It is an anathema in law to decide a matter without due notice to the concerned party.

Every effort must be taken to meaningfully and realistically serve the affected party so as not merely to ensure that he has knowledge thereof but also to enable him to initiate any permissible action.

It is the basic principle of law long settled that if the manner of doing a particular act is prescribed under any statute, the act must be done in that manner or not at all.

The Inspector who ostensibly served the copy of the Order should have known the requirements of the statute and therefore should have insisted on an acknowledgement either by the Appellant or by its authorized agent.

The Inspector had a statutory function to fulfil, not a mere perfunctory one.

Pray that your GST notices come by one of the first three methods. Otherwise, that last-ditch newspaper strategy might just turn your financial woes into front-page news!

I wonder why sending via a carrier pigeon is not one of the options.

Until next week