When Can Deeming Service U/Clauses (C) & (D) Of S.169(1) Of GST Act Be Said To Be Deemed Service U/S 169(2)? : Asks Allahabad High Court

In a recent case, the Allahabad High Court has asked the State to explain “as to how and under what manner, the deeming service as per clauses (c) & (d) of sub-section (1) of section 169 can be said to be deemed service as per sub-section (2) of section 169 of the GST Act.”

Proceedings were initiated against the Petitioner under Section 74 of the GST Act, 2017 wherein an ex-parte order was passed without affording any opportunity for personal hearing to the Petitioner. Ex-parte order dated 03.12.2021 was uploaded on the portal. However, the Petitioner only came to know of it, when recovery proceedings were initiated and DRC-09 dated 25.02.2023 were issued to the Petitioner’s bank.

An appeal was filed in April 2023. However the same was rejected on the grounds that there was delay in filing the appeal. The orders are immediately available on the dashboard of the portal. Since the date of the order is 03.12.2021, it shall be treated as the date of communication of the order.

The order of the Appellate Authority has been challenged before the High Court on the ground that an appeal filed by the petitioner against an order of the Assessing Authority was rejected by mistaking the date of the order to be the date of the communication.

Counsel for Petitioner contented that merely uploading the order on the portal does not amount to the communication of the order. Order can be said to be communicated only when the person concerned gains knowledge of the same.

Section 169(1) of the GST Act lays down acceptable modes of services, i.e., by registered post or speed post, communication on e-mail, making available on the common portal, by publication in a newspaper or by affixation. If service is made by way of Section 169(1), then the order is deemed to be served under Section 169(2).

Counsel for Petitioner, further argued that service through email and through the common portal are not deemed to be service under Section 169(2). Thus, the challenge to the order dated 03.12.2021 was within limitation as the date of communication was 22.03.2023.

While granting time to the State to file a counter affidavit, Justice Piyush Agrawal has sought specific averments as to whether service of an order deemed to be made by email or by the posting of the common portal be treated as an order served under Section 169(2) of the GST Act.

The matter is directed to be listed on 11^th September 2023.

Case Title: M/S Virender Kumar Projects Pvt Ltd v. State Of U.P. And 2 Others [Writ Tax No. – 945/2023 & 954/2023]

Counsel for Petitioner: Nishant Mishra, Vedika Nath

Click Here To Read/Download Order