MODES OF SERVICE – NOTICE, ORDER, SUMMONS, ETC.
Any decision, order, summons, notice or other communication under the GST Act / Rules should mandatorily be served by any one of the following methods, according to Section 169 of the CGST Act, 2017:
(A) Hand Delivery:
- It can be served by giving or tendering:
- either directly; or
- by a messenger (including a courier);
- Such service should be to:
- the addressee or the taxable person; or
- manager or authorised representative or advocate or tax practitioner, holding authority to appear in the proceedings on behalf of the taxable person; or
- a person regularly employed by him in connection with the business; or
- any adult member of family, residing with the taxable person.
(B) Post / Courier:
- It can be served by registered post or speed post or courier, with acknowledgement due.
- Such service should be to:
- the intended person; or
- his authorised representative, if any.
- The service should be at the last known place of business or residence.
(C) E-mail:
- It can be served by e-mail;
- Such e-mail address should have been provided at the time of registration or as amended from time to time.
(D) Common Portal:
- It can be served by uploading on the common portal (www.gst.gov.in);
(E) Newspaper Publication:
- It can be served by publication in a newspaper.
- Such newspaper should be circulating in the locality in which the taxable person or the addressee is last known to have:
- resided;
- carried on business; or
- personally worked for gain.
(F) Affixing at Place of Business / Residence:
- It can be served by affixing it in some conspicuous place – at his last known place of business or residence.
- However, this mode should be adopted only if service is not practicable under the modes listed in (A) to (E) above.
(G) Affixing on Notice Board at the GST Department:
- It can be served by affixing a copy on the notice board of the office of the concerned officer or authority who or which:
- passed such decision / order; or
- issued such summons / notice.
- However, this mode should be adopted only if service is not practicable – for any reason – even under the mode listed in (F) above.
MODES OF SERVICE – DEMAND & RECOVERY (DRC) FORMS
Although Section 160 ibid provides various modes of servicing, perusal of Rule 142 of the CGST Rules, 2017 indicates the following forms should be uploaded electronically on the common portal irrespective of whether other modes of servicing were adopted or not:
- Form GST DRC-01, which is a summary of notice;
- Form GST DRC-07, which is a summary of order;
- Form GST DRC-08, which is a summary of the rectification order or withdrawal order (viz., where an order uploaded on the system is withdrawn).
The aforesaid rule also stipulates Form GST DRC-02 be served electronically. The said Form is a summary of statement issued under Section 73(3) or 74(3) ibid. Though not explicit but from construction of the said rule, it appears Form GST DRC-02 should also be uploaded electronically on the common portal.
Interestingly, the said rule remains silent on the mode of serving the following forms:
- Forms GST DRC-01A (pre-notice);
- Form GST DRC-04 (acknowledgement accepting payment before issue of notice); and
- Form GST DRC-05 (order concluding proceedings pursuant to intimation vide Form GST DRC-03).
Recent decision of Hon’ble High Court of Madhya Pradesh[1]: The Revenue had communicated show cause notice / order vide email. The assessee challenged the mode of service. It was held, with reference to Rule 142 ibid, that the only mode prescribed for communicating show cause notice / order is by uploading on the common portal.
At this juncture, it is key to note that Rule 142 ibid stipulates the mode of serving Form GST DRC-01 (which is a summary of notice; not a notice per se) and Form GST DRC-07 (which is again a summary of order; not an order per se).
[1] W.P. No. 16117/2020
DEEMED DATE OF SERVICE
(A) If served by registered post or speed post:
- The document is deemed to have been received by the addressee at the expiry of the period normally taken by such post in transit.
- However, such deeming fiction can be rebutted if the addressee can prove to the contrary.
- It is interesting to note that such deeming fiction does not explicitly cover service through courier with acknowledgement due.
(B) If served by other means:
- The document is deemed to have been served on the date on which it is tendered or published or a copy is affixed in the manner listed above.
The date of service is critical since the limitation period for appeal commences therefrom. Hence, it is important for the taxpayer / addressee to monitor the section titled “View Notices / Orders” at the time of log in to the common portal.
CONSEQUENCES OF IMPROPER SERVICE OF NOTICE
If a notice, order, summons, etc. is not served properly on the addressee / taxpayer, it can be called in question. There are numerous instances where department proceedings were quashed by Courts on account of improper service.
However, such service cannot be called in question under the following circumstances:
- If the notice, order or communication is acted upon by the addressee; or
- If such service has not been called in question at or in earlier proceedings.
Hence, taxpayer / addressee should raise objections on validity of communication at inception.
