Order of the High Court of Madras
[dated 06.01.2025, in Udumalpet Sarvodaya Sangham vs. Authority, from WP(MD) No. 26481 and others of 2024]
The Hon'ble Madras High Court (Madurai Bench) has held that Section 169 of the CGST Act mandates a notice in person or by registered post or to the registered e-mail ID alternatively. 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, etc.
Comments
The order is based on application of a Division Bench judgment delivered in the year 1972 on Rule 52 of the TNGST Rules, 1959. To give a brief background:
- Rule 52 ibid provided for service of notice / order in any of the following ways: (a) in person; (b) to any adult member of the family; (c) registered post; and (d) if none of the aforesaid modes were practicable, by affixing in the place of business / residence.
- On the other than, Section 169 ibid provides for service of notice / order by any one of the following methods: (a) in person / to any adult member of the family; (b) by postal means; (c) by e-mail; (d) on the common portal; (e) publication in newspaper; (f) if none of the aforesaid modes are practicable, by affixing in the place of business / residence; and if that is also not practicable, by affixing on the notice board of the officer / authority.
While observing correctly that Rule 52(d) ibid and Section 169(1)(f) ibid are pari materia, the aforesaid Division Bench judgment was applied to mean that:
- clauses (a) to (c) of Section 169(1) alone are alternative; and
- if that was not practicable, clauses (d) to (f) therein should be followed.
It is not forthcoming in the order why only clauses (a) to (c) of Section 169(1) ibid were held to be pari materia with clauses (a) to (c) of Rule 52 ibid. For that matter, Section 169(1)(c) ibid permits service by email, which is not existent in Rule 52 ibid. Further, the explicit language used in Rule 52 ibid appears to indicate that clauses (a) to (c) therein are rather pari materia with clauses (a) to (e) of Section 169(1) ibid. Moreover, the Division Bench's judgment appears to decide whether the different modes of service are cumulative or alternative.
Nevertheless, service through the common portal is frowned upon, with the undertone being that the not-so-literate taxpayers / their employees are unable to access the notice / order from the common portal. Better taxpayer education and ease of access to the notice / order on the common portal may go a long way in solving the issue.
