Sonali Roy vs. The State Of West Bengal And Ors.

WPA/5013/2025HC CalcuttaGSTCNR WBCHCA009863202525 August 2025Bench: HON'BLE JUSTICE RAJA BASU CHOWDHURY7 pages

AI SummaryDismissed

Facts

The petitioner, Sonali Roy, filed a writ petition challenging an order passed under Section 73(9) of the WBGST/CGST Act, 2017. The petitioner contended that she was not served with the pre-show cause notice in Form DRC 01A, and that the impugned order and proceedings were uploaded on the portal without proper service as contemplated under Section 169 of the Act. The petitioner relied on judgments from the Allahabad and Madras High Courts. The State argued that the petitioner had an alternative efficacious remedy of appeal and that the pre-show cause notice was no longer mandatory due to amendments in Rule 142(1A) of the Rules.

Held

The Court held that the non-service of the pre-show cause notice in Form DRC 01A does not vitiate the order. The Court noted that the judgment relied upon by the petitioner (Skyline Automation Industries) dealt with the pre-amended provision of Rule 142(1A) and therefore could not assist the petitioner. The Court further reasoned that for a provision to be mandatory, consequences for non-compliance must be provided, and no such consequences were specified for the non-issuance of the pre-show cause notice. Regarding service, the Court found that Section 169(1)(d) allows for service by making the communication available on the common portal. Since the proceedings were uploaded on the portal, and each mode of service under Section 169(1) is independent, the petitioner is deemed to have notice. The Court also noted that the petitioner has an alternative efficacious remedy of appeal. While dismissing the writ petition, the Court granted liberty to the petitioner to approach the appellate authority within four weeks, provided the costs of Rs. 10,000/- are paid, to challenge points not considered in the present judgment.

Key Issues

1. Whether the non-service of a pre-show cause notice in Form DRC 01A vitiates an order passed under Section 73(9) of the WBGST/CGST Act, 2017, particularly in light of the amended Rule 142(1A)? (Question of law) - Petitioner's argument: Non-service of DRC 01A is fatal to the proceedings, relying on Skyline Automation Industries v. State of U.P. The petitioner also argued that service was not effected as contemplated under Section 169, citing Sakti Steel Trading v. Assistant Commissioner (ST). - State's argument: The pre-show cause notice is no longer mandatory due to the amendment of Rule 142(1A). The petitioner has an alternative remedy of appeal. 2. Whether service of notice and orders by making them available on the common portal, as provided under Section 169(1)(d) of the Act, constitutes valid service? - Petitioner's argument: Uploading on the portal without other forms of service or email communication is not valid service under Section 169. - State's argument: Service on the portal is a valid mode of service under Section 169.

Sections Cited

Section 73, Section 73(9), Section 169, Section 169(1), Section 169(1)(d), Rule 142(1A)

AI-generated summary — verify with the full judgment below

Cause title — parties, addresses and appearances

43 25.08.2025 sayandeep Ct.5. IN THE HIGH COURT AT CALCUTTA CONSTITUTIONAL WRIT JURISDICTION APPELLATE SIDE WPA 5013 of 2025 Sonali Roy Versus The State of West Bengal & Ors. Mr. Pranit Bag Mr. Abhik Chitta Kundu … For the petitioner Mr. A. Roy, Ld. GP Mr. T. Chakraborty Mr. S. Sanyal Mr. D. Sahu … For the State 1. The affidavit-of-service filed in Court today is taken on record. 2. The present writ petition has been filed, inter alia, challenging an order passed under Section 73(9) of the WBGST/CGST Act, 2017 (hereinafter referred to as the “said Act”). 3. Mr. Bag, learned advocate appearing in support of the writ petition has submitted that in the instant case, the petitioner was not served with the pre-show cause notice in form DRC 01A. According to him, without service of notice in form DRC 01A, no show-cause notice under Section 73 could have been issued. In support of his aforesaid contention, he has placed reliance on the Judgment delivered by the Hon’ble High Court of Allahabad in the case of Skyline 2 WPA 5013 of 2025 Automation Industries v. State of U.P. reported in [2023]146 taxmann.com 159(Allahabad). He next points out that in the instant case, not only the order impugned but the entire proceedings was uploaded on the portal. At no stage, the petitioner was served with any other notice or email communication, as contemplated under Section 169 of the said Act. In support of his aforesaid contention that in absence of service of notice at the petitioner’s registered e-mail Id, an order passed under Section 73(9) cannot be enforced, reliance has been placed on the judgment delivered in the case of Sakti Steel Trading v. Assistant Comissioner (ST), reported in [2024]159 taxmann.com 233(Madras). He would next submit that the notice issued under Section 73 of the said Act had also been uploaded under the head “view additional Notices on orders”. Unfortunately, the aforesaid submission is not supported by any statement made by the petitioner and having regard thereto, I am not inclined to consider the judgment relied on by Mr. Bag in the case of St. Xaviers College Calcutta Alumni Association v. Dy. Commissioner of Revenue CGST, reported in [2025]173 taxmann.com 417 (Calcutta), on the above issue. 3 WPA 5013 of 2025 4. Mr. Sanyal, learned advocate appears on behalf of the respondents. He would submit that the petitioner has an alternative efficacious remedy in the form of an appeal. The petitioner should not be permitted to invoke the extra ordinary writ jurisdiction of this Court. Admittedly, in this case, the petitioner was served with the notice of proceedings under Section 73 of the said Act on the portal. 5. Mr. Sanyal, would, further, submit that the pre- show cause notice in the form DRC 01A is no longer mandatory having regard to the amended provisions of Rule 142(1A) of the WBGST/CGST Rules, 2017 (hereinafter referred to as the “said Rules”) According to him, no interference is called for. 6. Having heard the learned advocates appearing for the respective parties and having considered the materials on record, I notice that in the instant case, on the petitioner’s own showing as pleaded in paragraph 9 of the petition, the petitioner claims that the order impugned including the proceedings preceding such order were uploaded on the portal. In this context, I find that the Act recognizes the manner in which the notice and order of the proceedings shall be served on a registered tax payer. To morefully appreciate the 4 WPA 5013 of 2025 same, the provisions of Section 169 of the said Act are extracted herein below: “169. Service of notice in certain circumstances.—(1) Any decision, order, summons, notice or other communication under this Act or the rules made thereunder shall be served by any one of the following methods, namely:— (a) by giving or tendering it directly or by a messenger including a courier to the addressee or the taxable person or to his manager or authorised representative or an advocate or a tax practitioner holding authority to appear in the proceedings on behalf of the taxable person or to a person regularly employed by him in connection with the business, or to any adult member of family residing with the taxable person; or (b) by registered post or speed post or courier with acknowledgement due, to the person for whom it is intended or his authorised representative, if any, at his last known place of business or residence; or (c) by sending a communication to his e- mail address provided at the time of registration or as amended from time to time; or (d) by making it available on the common portal; or (e) by publication in a newspaper circulating in the locality in which the taxable person or the person to whom it is issued is last known to have resided, carried on business or personally worked for gain; or 5 WPA 5013 of 2025 (f) if none of the modes aforesaid is practicable, by affixing it in some conspicuous place at his last known place of business or residence and if such mode is not practicable for any reason, then by affixing a copy thereof on the notice board of the office of the concerned officer or authority who or which passed such decision or order or issued such summons or notice. (2) Every decision, order, summons, notice or any communication shall be deemed to have been served on the date on which it is tendered or published or a copy thereof is affixed in the manner provided in sub- section (1). (3) When such decision, order, summons, notice or any communication is sent by registered post or speed post, it shall be deemed to have been received by the addressee at the expiry of the period normally taken by such post in transit unless the contrary is proved.” 7. Admittedly, I find that having regard to the provisions contained in sub-Section (2) of Section 169 of the said Act that, service of orders summons, notice or any communication shall be deemed to have been served on the date on which it is tendered or published or a copy thereof is affixed in a manner provided in Section 169(1) of the said Act. I notice that one of the modes for service of decision, orders, summons, notice or other communications under the said Act and the 6 WPA 5013 of 2025 Rules thereunder is through uploading the same on the portal in terms of sub-Section (1) Clause (d) of Section 169 of the said Act. 8. In view thereof, since the proceedings were duly uploaded on the portal and since each of the modes of service under Section 169(1) are separate and can be effected independent of the other modes of service provided for therein, the petitioner is deemed to have notice of such proceedings. Although, on the aspect of non

service of pre show cause notice, the judgment delivered by the Hon’ble High Court of Allahabad in the case of Skyline Automation Industries (supra) has been relied on, I find that the same deals with the pre-amended provision of Rule 142(1A) as was subsisting prior to its amendment on 15th October, 2020. The said judgment thus, proceeds on the premise of the unamended provision of Rule 142 (1A) of the said Rules.

Having regard thereto, the aforesaid Judgment cannot assist the petitioner. This apart, it is well settled that for a provision to be of a mandatory character, there must be some consequences provided. No consequence has, however, been provided for non issuance of the pre show-cause notice in DRC 01A. Having regard thereto, I am not inclined to accept the contention of Mr. Bag

7 WPA 5013 of 2025

that non-service of pre show-cause notice is DRC 01A vitiates the order. The petitioner otherwise has an alternative efficacious remedy. However, the petitioner has tried to invoke the extra ordinary remedy without a cause. The writ petition is accordingly dismissed with costs of Rs. 10,000/- to be paid by the petitioner to the respondents.

10.

Since, it would transpire that the petitioner has invoked the extra ordinary juri iction belatedly, and the time to prefer the appeal before the appellate authority has already expired, I am of the view, in the event, the petitioner approaches the appellate authority within a period of 4 weeks from date, challenging the determination on the points not considered herein, the appellate authority having regard to the observations made herein and upon ascertaining the status of payment of costs as directed, shall hear out and dispose of the appeal on merits as expeditiously as possible in accordance with law.

(Raja Basu Chowdhury, J.)

Reproduced from the public record of the Calcutta High Court. Verify against the court's own copy before relying on it. Income tax judgments are on bharattax.net.