M/S Sri Srinivasa Enterprises vs. The Assistant Commissioner Of State Tax
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Cause title — parties, addresses and appearances
in pursuance of the impugned assessment order passed by the 1 any respondent in Form GST DRC -07 dated 4-8-2023 and the recovery notice issued by the 4*'^ respondent dated 27-12-2023 pending disposal of the writ petition as otherwise the petitioner would be put to irreparable loss and hardship. Counsel for the PetitionerSRI. BHASKAR REDDY VEMIREDDY Counsel for the Respondents No.1 to 4: GP FOR COMMERCIAL TAX The Court made the following: ORDER
HON’BLE SRI JUSTICE RAVI NATH TILHARI & HON’BLE SRI JUSTICE HARINATH.N WRIT PETITION N0.221 of 2024 ORDER: Heard Sri Bhaskar Reddy Vemireddy, learned counsel for the petitioner and Sri Shreyas Reddy, learned Government Pleader for Commercial Tax. senior The challenge in this writ petition under Article 226 of the Constitution of India is to the impugned order in FORM GST 07 dated 04.08.2023 vide DIN No.MA3708230062617
While challenging the said order, learned senior counsel appearing through virtual mode submits that the order has not been signed and without signature there can be no order in the eyes of law. Such an order cannot be given effect to. He placed reliance in the judgments of coordinate bench of this Court in W.P.No.29397 of 2023 decided on 10.11.2023 and W.P.No.30109 of 2023 decided on 21.11.2023, in which it has been held that the provisions of Section 160 and 169 of Goods and Services Tax Act, 2017 (GST Act, 2017) are not attracted and in the guise of those legal provisions, signature cannot be dispensed with.
Lr4 2 The another submission advanced by the learned senior 4. counsel is that the impugned order has been passed on a ground which was not mentioned in the show cause notice. In other words, the order has been passed on a ground different than as mentioned in show cause notice.
On 05.01.2024 we passed the order granting time to the learned Government Pleader to obtain instructions if the impugned order was signed or not. We also called for the affidavit of the respondent No.2 - Chief Commissioner of the State Tax, Andhra Pradesh, bringing on record as to what steps had been taken pursuant to the direction issued in W.P.No.30109 of 2023 decided on 21.11.2023. 6. By the order dated 21.11.2023, the Chief Commissioner State Tax, Andhra Pradesh was directed to issue necessary instructions/directions to all concerned to ensure that the orders are signed manually or digitally, as the case may be, and then to be uploaded.
Sri Shreyas Reddy, learned Government Pleader submits that the impugned order was not signed neither manually nor digitally.
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He further submits that the respondent No.2 Chief Commissioner of State Tax, Andhra Pradesh, has issued necessary directions, vide CCST’s e office File No. REV03- 22021/7/2023-Ll SEC-CCT, dated 15.12.2023, to comply with the order in W.P.No.30109 of 2023. A copy of the same has been placed before us. In view thereof, filing of the affidavit, by the Chief Commissioner, vide order dated 05.01.2024, is dispensed with.
It is apt to reproduce para Nos.5 to 9 of the judgment in W.P.No.30109 of 2023, as under:
“5. In M/s.SRK Enterprises’ case (cited supra), this Court referred to the previous order of the Co-ordinate Bench in the case of A.V.BhanoJi dispensed with and the provisions of Section 160 & 169 of the COST 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. An unsigned order cannot be covered under “any mistake, defect or omission therein” as used in Section 160. 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 placed 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 rescue. 10.Paragraph 6 of A. 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 7. •6. 4 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 or 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, forjustifying the impugned action."
In view of the aforesaid, we allow this petition and set aside the proceedings/order issued by respondent No.l dated 25.09.2023. The respondent authorities to pass fresh orders in accordance with law, expeditiously.
We observe that this is not the first case in which the order is not signed by the concerned authority but uploaded. The challenge to such kinds of order has been upheld. This defect and consequently passing fresh orders, delays the proceedings in tax matters. Also unnecessarily burdens this Court.
We therefore issue direction to the Chief Commissioner of the State Tax, Andhra Pradesh, to issue necessary instructions/directions to all concerned to ensure that the orders should be signed manually or digitally as the case may be and then to upload the same.
The Writ Petition stands allowed in part in the aforesaid terms. ”
Following the judgements of the Co-ordinate Bench, the impugned order is quashed only on the ground that it has not been signed. The authority shall pass fresh orders preferably within the 11. period of four (04) weeks from the date of receipt of a copy of this order, in accordance with law. We clarify that we have not entered into the merits of the 12. impugned order, and have also not observed anything with respect to the contention of the learned counsel for the petitioner that the impugned order was passed on a ground different than as mentioned in the show cause notice. . ..
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The writ petition stands allowed in part in the above terms. No order as to costs. As a sequel thereto, miscellaneous petitions, if any pending, shall also stand dismissed. U. SRIDEVI ASSISTANT REGISTRAR //// SECTION OFFICER To,
The Assistant Commissioner of State Tax, O/o. The Additional Commissioner (ST), Regional GST Audit and Enforcement Office, Tirupati, Andhra Pradesh.
The Chief Commissioner of State Tax, D.NO. 12-468, Adjacent to NH- 16, Service Road, Kunchanapalli, Guntur District, Andhra Pradesh.
The secretary. Revenue, GST Department, State of Andhra Pradesh, Secretariat Buildings, Amaravathi, Andhra Pradesh.
The Deputy Assistant Commissioner (ST)-II, Nellore -II Circle, Nellore, SPS Nellore District. Andhra Pradesh.
One CC to SRI V. SIDDHARTH REDDY Advocate [OPUC]
Two CCs to GP FOR COMMERCIAL TAX, High Court of Andhra Pradesh [OUT]
Three C.D Copies Nm MBT
HIGH COURT DATED: 10/01/2024 ORDER WP.No.221 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.