M/S.Srs Traders vs. The Assistant Commissioner (St)
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The petitioner, M/s. SRS Traders, challenged an order in Form GST DRC-07 dated 05.06.2023, passed by the Assistant Commissioner (ST), Kothapet Circle, Guntur. This order levied tax of Rs. 3,72,00,616/-, interest of Rs. 1,21,90,432/-, and penalty for the tax period 2018-19 to October 2021. The petitioner contended that the order was not signed by the concerned officer, rendering it invalid and in violation of principles of natural justice. They had also filed objections on 29.03.2023 and 12.05.2023, which they claimed were not considered. The petitioner sought to set aside the impugned order and requested its suspension pending disposal of the writ petition.
Held
The Court held that an unsigned order is not an order in the eyes of law and cannot be given effect to. It found that Section 160 of the CGST Act, 2017, which deals with mistakes, defects, or omissions, is not attracted as it refers to errors in assessment, re-assessment, or adjudication, not the fundamental omission of a signature. The Court reasoned that such an omission goes to the root of the validity of the order. Furthermore, Section 169 of the CGST Act, 2017, which pertains to the mode of service, was also deemed not applicable as the issue was not about service but about the non-signature of the order itself. The Court reiterated the principle from previous judgments that signatures cannot be dispensed with. Consequently, the Court set aside the impugned order dated 05.06.2023 and directed the respondent authorities to pass fresh orders in accordance with the law expeditiously. The Court expressly left undecided the merits of the objections filed by the petitioner.
Key Issues
1. Whether an order passed under the Goods and Services Tax Act, 2017, which is not signed by the issuing authority, is valid in the eyes of law, particularly in light of Section 74 of the Act? 2. Whether the provisions of Section 160 and Section 169 of the Central Goods and Services Tax Act, 2017, can validate an unsigned order or cure the defect of non-signature? Petitioner's Arguments: The petitioner argued that an unsigned order is no order in the eyes of law and cannot be implemented. They relied on previous judgments of the High Court, specifically M/s. SRK Enterprises vs. Assistant Commissioner and A.V. Bhanoji Row vs. Assistant Commissioner (ST), which held that signatures cannot be dispensed with. Respondents' Arguments: The respondents, through the Government Pleader, conceded that the impugned order was not signed but was uploaded by the competent authority. They attempted to rely on Section 160 and Section 169 of the CGST Act, 2017, to support the validity of the unsigned order, similar to the plea raised in the M/s. SRK Enterprises case.
Sections Cited
Section 74, Section 160, Section 169
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Cause title — parties, addresses and appearances
The Court made the following: ORDER
APHCO10444932023 IN THE HIGH COURT OF ANDHRA PRADESH AT AMARAVATI (Special Original Juri iction) [3464] TUE AY ,THE NINETEENTH DAY OF MARCH TWO THOUSAND AND TWENTY FOUR PRESENT THE HONOURABLE SRI JUSTICE RAVI NATH TILHARI THE HONOURABLE SRI JUSTICE HARINATH.N WRIT PETITION NO; 5238/2024 Between: PETITIONER M/s.srs Traders, • • • AND RESPONDENT(S) The Assistant Commissioner St and Others • • • Counsel for the Petitioner: l.SHAIK JEELANI BASHA Counsel for the Respondent(S): l.GP FOR COMMERCIAL TAX 2.G.ARUN SHOWRI(CENTRAL GOVT. COUSEL) The Court made the following: ORDER:- (per Hon’ble Sri Justice Ravi Nath Tilhari) Heard Sri Shaik Jeelani Basha, learned counsel for the petitioner and learned Government Pleader for Commercial Taxes for respondent Nos.l and 2 and Sri G.Arun Showri, learned counsels for respondent No.
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With the consent of learned counsel for the parties, this writ 2. petition is decided at this stage. Learned counsel for the petitioner submits that the impugned order dated 05.06.2023 is not signed by the authority and 3. consequently, no order in the eyes of law. The same cannot be implemented or given effective to. He submits that the matter is squarely covered by the order passed by this Court in the case of M/s.SRK Enterprises vs. Assistant Commissioner in W.P.No.29397 of 2023 decided on 10.11.2023. 4. Learned Government Pleader for Commercial Tax has obtained oral instructions from the authority and informed that the impugned order is not signed but was uploaded by the competent authority. He raised the same plea as was raised in M/s.SRK Enterprises* case (cited supra) relying on Section 160 and 169 of the Central Goods and Services Tax Act, 2017 (for short ‘the CGST Act, 2017’).
In M/s.SRK Enterprises* case (cited supra), this Court referred to the previous order of the Co-ordinate dispensed with and the provisions of Section 160 8& 169 of the CGST Act, 2017 would not come to the rescue. This Court held that:
On consideration of the submissions advanced and the legal provisions, we are of the view that Section 160 of COST Act 2017 is not attracted, unsigned order cannot be covered under “any mistake, defect or omission therein as used in Section 160. An The said expression refers to any mistake, defect or omission in an order with respect to assessment, re-assessment; adjudication etc and which shall not be invalid or deemed to be invalid by such reason, if in substance and effect the assessment, re-assessment etc is in conformity with the by learned counsel for the petitioner (Ex.P6), a Co-ordinate Bench of this Court has held that the signatures cannot be dispensed with and the provisions of Sections 160 and 169 of COST Act would not come to the in rescue.
Paragraph 6 ofA. V. Bhanoji Row (supra) is reproduced as under:-
A reading of Section 160 of the Act makes it very much clear and candid that the safeguards contained therein cannot be made applicable for the contingency in the present case. Section 169 of the Act, which deals with the service of notice, enables the department to make available any decision, order. Summons, Notice other communication in the common portal. In the guise of the same, the signatures cannot be dispensed with. In the considered opinion of this court, the aforesaid provisions of law would not come to the rescue of the respondent herein, for justifying the impugned action. ” or 6. In view of the aforesaid, we allow this petition and set aside the proceedings/order issued by respondent No.l dated 05.06.2023. The respondent authorities to pass fresh orders in accordance with law, expeditiously.
The Writ Petition stands allowed in part in the aforesaid terms.
No orders as to costs. As a sequel thereto, miscellaneous petitions, if any pending, shall also stand closed. K. TATA RAO DEPUTY REGISTRAR //// SECTION OFFICER To,
The Assistant Commissioner (ST), Kothapet Circle, Guntur-ll.
The Principal Secretary, Revenue (CT) Department, State of Andhra Pradesh, A.P. Secretariat, Amaravati.
The Secretary to Government Finance Department, Union of India, New Delhi
One CC to SRI SHAIK JEELANI BASRA Advocate [OPUC]
Two CCs to GP for COMMERCIAL TAX, High Court of Andhra Pradesh. [OUT]
One CC to G ARUN SHOWRI, SC for CENTRAL GOVT. COUNSEL [OPUC]
Three CD Copies Madhu gl
HIGH COURT DATED: 19/03/2024 ORDER WP.No.5238 of 2024 PARTLY ALLOWING THE WP WITHOUT COSTS
Reproduced from the public record of the Andhra Pradesh High Court. Verify against the court's own copy before relying on it. Income tax judgments are on bharattax.net.