M/S. Hyderabad Integrated Msw Limited vs. The Deputy Commissioner Of State Tax

Perused the material available on record.

The instant writ petition has been filed for the following relief: "to issue a writ, order, or direction more particularly one in the nature of a Writ of Mandamus: I. declaring the impugned Order vide Ref No.2D361223065013V, dated 30.12.2023, passed by the l'' respondent under the provisions of CGST/TGST Act, 2017 as being void and arbitrary. AND :

The primary contention of the learned counsel for the petitioner assailing the show cause as also the impugned order was that the show cause notice as also the assessment order have not been signed by the 1't respondent either digitally or physically as is otherwise required under Rule 26 of the Central Goods and Services Taxes Rules (for short "CGST').

The learned counsel for the Department submits that he has not received any satisfactory instructions from the Department as to why the show cause notice as also the order of assessment have not been signed by the l't respondent while issuing the same either digitally or physically.

It is at this juncture relevant to take note of the recent decision of the Hon'ble High Court for the State of Andhra pradesh in W.P.No.29391 of 2023 and stood decided on 10.11.2023, l. i: "tr '.)

On con sideration of the suZrmrlssions aduanced and the legal prouisions, we are of the uieu that Section 76O of CGST Act 2017 is not attracted. An unsigned order cannot be couered under -any mistake, deka or omission thereid as used in Sedion 16O. The said expression rekrs to ang mistake, dekct or omission in an order uith respect to assessm/-nt, re-a-ssessment; adjudication etc and tuhich shall not be inualid or deemed to be inualid bg such reason, if in substance and effect the assessment, re- assessmen, etc is in confonnitg tuith the requirements of the Act or ang existing lout. These uould not couer omission to sign the order. Unsigned order is no order in the eAes of lanu. Merelg uploading of the unsigned order, mag be by the AuthoitA competent to pass the order, tuould, in our uiew, not cure the defect uLhich goes to the uery root of the matter i.e. ualidity of the order.

We are of the further uieu-t that Section 769 of CGST Act 2O77 is also not attracted. Here, the qrcstion is of not signing the order and not of its seruice or mode of sentice.

In the co-se of A. V. BLnnoji Rotu us. Assistant Commi.ssioner ( in W.P.No.2830 of 2023 decided on 14.02.2023, upon tuhich relionce has been placed bg learned aun-sel for the petitioner (Ex.P6), a Co-ordinate Bench of this Court has held tLnt the signatures cannot be dbpensed with and the prouisions of Sections 160 and 169 of CGST Act would not come to the rescue. 1

A reading of Section 160 of the Act makes it uery much clear and candid that the safeguards contained therein cannot be made applicable for the contingencA in the present case. Section 169 of the Ac| tuhiclt deaLs ttlith the seruice of notice, enables the department to make auailable ang decision, order, Summons, Nolice or other communication in the common portal. In tLLe guise of the same, the signatures cannot be dispensed uith- In the con-sidered opinion of this court, the aforesaid prouisiors of law uould not come to the rescue of the respondent herein, for justifuing the impugned action. 1 7. The uit petition deserues to be allou.ted on the fi.rst ground itself.

Consequently, ute are not entering into the meits of the second ground, teauing it open to the concemed authoitg to consider, if the ground as in the impugned order, is difJerent than the one contained in the shotu cause notice, and if it is so, it shall be open for the Authority to issue fresh notice, i,f it is proposed to proceed on such ground. Hotaeuer, at this stage, learned counsel for the petitioner submits that the petitioner has submitted reply to the show cause notice dated 31.01.2023 and he shall also ftle additional reptg, uith respect to the atleged new ground as in the impugned order of hi.s ouLn, uithin a peiod of four (O4) ueeks from todag. The similar view was also taken in yet another writ petition by the Hon'ble Division Bench of the Andhra Pradesh High Court in W.P.No.2830 of 2023 which stood decided oL L4.OZ.ZO23. 6 ( PSK,J&,MTR,J wherein also the Hon'ble Division Bench had reiterated the same view wherein paragraph Nos.6 and 7 has held as under:

A reading of Section 160 of the Act makes it uery much clear and candid that the safeguards contained therein cannot be made aPPlicable for the contingencg in the present co.se. Section 169 of the Act, uthich deals u-tith the seruice of notice, enables the deportment to make auailable ang decision, order, 4 Summons, Notice or other communication in the common portol. In the guise of the same, the signatures cannot be dispensed u.rith. In the considered opinion of this court, the aforesaid prouision-s of lau.t tttould not come to the resctLe of the respondent herein, for justifuirLg tLrc impugned action.

For the oforesaid reason-s, this Wit Petition is aLlou.ted, setting aside the impugned order of the 7st Respondent, dated 23-11-2022 and the DRC-O7 notice, dated 23 11-2022 for the tax peiod 201 7-18,2018-19 and 201 9-20, as utell as the shottt cause notice dated 22-10-2022 and DRC-01 notice, dated 22-10 2022 issued bg the lst Respondent and upLooded in the GST common portal. Horueuer, this order will not preclude tlrc resPondents from proceeding in accordance u.tith lau, in the light of the obseruations made Supra. There shatl be no order as to costs. 7 There was yet another view from the Bombay High Court in W.P.No.9331 of 2022, decided oL 21.09.2022, wherein, under similar circumstances, the Bombay High Court taking into 6 PSI(,J & MTE,J W.P.No.7935 of 2O24 consideration the provisions of Rule 26(3) of the CGST Rules 2017, in paragraph Nos.43 to 45 held as under: Therefore, anA person aggieued bg ang decision or order passed under the Act maA opplA to the Appellate Authoitg utithin three months from the date on u.thich such decision or order is communicated to such person. Rule 26(3) of the Central Goods and Seruices Tax Rules, 2O17 (the CGST Rules) and it is pai mateid Luith Maharoshtra Goods and Seruices Tax Rules, 2017 requires orders ksued under Chnpter III of the rules to be authenticated bg a digital signoture certificdte or througlt Esignature or bg anA other mode of signature or ueif.cation notified in that behalf. Fonn GST-REG u-thich utas notif.ed under the Rules for the purpose of passing order for cancellation of registration specificallg requires tIrc signature of the offcer passing the order. Respondent has not denied that anA order passed by respondent requires to be digitally signed and certif.ed.

It is petitioner's case that the order in original dated 14th Nouember 2019 u.thich u-tas impugned in the appeal filed before Respondent No.3 ho-s not been digitallg signed. Therefore, it uas not issued in accordance tuith Rule 26 of the CGST Rules. Hence, the time limit for filing the appeal u.tould begin onlg upon digitallg signed order being made auailabLe.

Auennents in paragraph Nos.6, 7 and 8 of the petition reads as under:

With respect to tlrc i.ssue of limitation, the order uhich is appealed against, which is the Order for Cq1c9-l!{on of Registration dated 14

Rule 26(3) of the Central Good"s and Seruices Tox Rules, 2O17 ond the paimateia Maharashtra Goods and Seruices Tox Rules, 2O17 requires orders issued under Chapter III of the rules to be authenticated bg a digital signature certificate or through E- signature or bg ang other mode of signoture or uerifi.cation notifted in this beLnlf. The Form GST REG 19 uhich u.tas notified under the Rules for the purposes of passing order for cancellation of registratio n specifi.callg requires the signature of the offtcer passing the order.

Thus, the limitation peiod for ftling

Considering the judicial precedents referred to in the preceding paragraphs, we are of the considered opinion that the impugned order in the instant case also since it is an un-signed document which lose its efficacy in the light of requirement of Rule 26(3) of the CGST Rules 2017 and also under the TGST Act and Rules 2017. The show cause notice as also the impugned order both would not be sustainable and the sarne deserves to be and is accordingly set aside/quashed. However, the right of the respondents would stand reserved to ta-ke appropriate steps strictly in accordance with law governing the f,reld.

Accordingly, this Writ Petition stands allowed. No \ I I order as to costs. \

The P,rincipal Secretary to Government Revenue Department (Commercial Tax), State of Telangana, Hyderabad, Telangana.

The Secretary, Union of lndia, Ministry of Finance, North Block, New Delhi- 1 '10 001

The Commissioner, Central Board of lndirect Taxes and Customs, GST policy Wing, New Delhi

One CC to SRI IV. NAGA DEEPAK, Advocate [OPUC]

One CC to SRI SWAROOP OORILLA, Special Government pleader for State Tax [OPUC] B. One CC to SRI GADI PRAVEEN KUIVAR, Deputy Solicitor Generat of lndia loPUCl

One CC to l\,4r. DOIVINIC FERNANDES, SENTOR S.C. for CB|C IOPUCI

Two CD Copies /