M/S. Duraplast Industries vs. Assistanat Commisssioner (St)

The challenge in the instant writ petition is to the show cause notice annexure-P2 dated 28.05.2022, passed by the 2"'r respondent and thc subsequent assessment order dated 12.12.2023, passed by the I't respondent.

The primary contention of the leamed counsel for the petitioner assailing the show cause as also the impugned order was that the show cause notice as also the assess,nent ordel have not been signed by the l" respondent either digitally or physically as is otherwise required under Rule 26 of the Ccntral Goods and Services Taxe.s Rulcs (fbr shorr "CGS'f"). ,n

It is at tl.ris j uncture relevant to take note of the recent decision of the I-Iigh Court for the State of Andhra Pladesh in W.P.No.29397 of 2023 and stood decided on 10.i l-2023, wherein the Hon'ble Division Bench of the Andhra Pradesh High Court had under similar circumstances in paraglaph Nos.7 to 12 held as under: ST

On consideration of tlLe submissions aduonced and the legal proubions, ue are of the uieut that Section 160 of CGST Act 2017 is not attracted. An unsigned order connot be couered under -anY mistake, dekct or omission thereinl os used in Section 16O. The said expression relers to ang mistake, d ekct or omission in on order uith respect to ossessment, re-dssessment; adjudication etc ond uhich slull not be inualid or deemed to PSI(,J & ]VTR,J W.P.No.5375 of 2O24 be inualid by such reasory if in substance and effect the assessment, re- assessmenl etc is in conformitg u-,ith the requirements of the Act or ang existing latu. These u.tould not couer omission to sign the ord.er. Unsigned order is no order in the eAes of law. Merelg upLoading of the unsigned order, may be bg the AuthoritA competent to pass the ord.er, uould, in our uiew, not o)re the dekct tthich goes to tlrc uery root of the matter i.e. uolidity of the order.

We ore of the further uietu that Section 1 69 of CGST Act 2017 is also not attracted. Here, the question is of not signing the order and not of its seruice or mode of seruice.

In the case of A. V. Bhanoji Rou.t us. Assisrant Commissioner (Sq in W.P.No.2830 of 2023 decided on 14.02.2023, upon tuhich reliance has been ploced bg learned counsel for the petitioner (Ex.P6), a Co-ordinate Bench of this Court has held that the signatures cannot be dispensed trith and. the proui.siorLs of Sections 160 and 1 69 of CCST Act would not come to the rescue. 7O. Paragroph 6 of A. V. Bhanoji Roul (supra) is reproduced as under:- -

A reading of Section 160 of the Act makes it uery much clear ond candid that the safeguards contained therein connot be made applicable for the contiftgencA in the present case. Section 169 of the Ac| which deal-s u-tith the seruice of notice, enables the department to make auailable ong decision, order, Summons, Notice or other communicotion in the common portal. In the guise of the same, tlLe signatures cannot be di,spen-sed tuittt In the considered opinion of this court, the aforesaid prouisions of tau u.tould not come to the resane of the respondent herein, for justifuing th.e impugned acLion.

The turit petitiort deserues to be sl[611rcd on the first ground itself

Consequentlg, ute are not enteing in.to the meits of the second ground., Leaung it open to the concemed authoritg to consider, if tlte ground as in the impugned order, is dtfferent thon the one contained in tlrc slnu cause notice, and tf it is so, it shall be open for the Autl'oity fo issue fresh notice, if it is proposed to proceed on such ground. Hou,euer, at this stage, lea nted counsel for the petitioner submits that the petilioner has subm[tted replg to the shotu cause notice daled 31.01.2023 and Lrc shall atso ftle additional replg' LDitL,. respect to the alleged neut ground as :n the impugned order of his oran, utithin a peiod of four (04) weeks from todoy. The similar view was also taken in yet another u'rit petition by the Hon'ble Division Bench of the Andhra Pradesh Iligh Court in W.P.No.283t) of 2023 which stood decided on 11.02.2023, wherein also the Hon'ble Division Bench had reiterated the same view wherein p.rragraph Nos.6 and 7 has held as under 6. A reading of Section 16O of the Act makes it uery much clear and candid that the safeguards contatned therein cannot be mode apPticable for the contingencg in the present case. Section 1ti9 of the Act, uLhich deals uLith the se:ruice of notice, enables the d<:partment to make auailable anY d<=cision, order, 4 Summons, Notice or other communication in the common portal. In the guise of the same, the signatures cannot be dispensed u.tith. In th.e considered opinion of this court, the a.,roresatd prouisions of lanu uould not PSK,J AL NTR,J come to the resq)e of the respondent herein, for justtfuing the impugned action.

For tLLe aforesaid reosons, this Wit Petition is alloued, setting aside the impugned order of the 1st Respondent, dated 23-11-2022 and the DRC-O7 notice, dated 23 11-2022 for the tox peiod 2O17-18,2018-19 and 2O19 20, as well os the shotu cause notice dated 22-10 2022 and DRC-01 notice, dated 22-10 2022 issued bg the lst Respondent ond uploaded in the GST common portal. Houeuer, thb order uill not preclude the respondents from proceed-ing in accordance with lau.), in the light of the obseruattons made Supra. There shall be no order as Lo co-sl-s.

There was yet another view from the Bombay High Court in W.P.No.933l of 2022,, decided on 2l .09.2022, wherein under similar circumstances the Bombay High Court taking tnto consideration the provisions of Rule 26(3) of the CGST Rules 2017, in paragraph Nos.43 to 45 held as under 'l-lrcrefore, anA person aggieued bg any decision or order passed under the Act maA opplA to the Appellate AutlToitg tuithin three months from the d.ate on uhich such d.ecision or ord.er is communicated to such person- Rule 26(3) of the Central Goods and Seruices Tax Rules, 2017 (tlle CGST Rules) and it is pari mateia u.tith Maharashtra Goods and Seruices Tctx Rules, 2O17 requires orders issued und.er Chopter III of the ntles to be authenticated bg a digital signatu.re certificate or through Esignoture or bg l; r-'\ .'l

IL is petitioner's case tL'Lat the order in oiginal dated 14th Nouember 2O19 uthich uas impugned in the aPPeaI fikd before Respondent No.3 hos not been digitaLly signed. Therefore, it u)as not issued in accordonce uith Rute 26 of the CGST Rules. Hence, the time LLnrit lor filing tLrc appeal utould begin onlg upon digttall"g signed ord.er being rn xle auoilable.

Auerments ln paragraPh Nos.6, 7 attrl 8 of the petttion reads as under:

With respect to the issue of t nitation, the order u-thich is appeaLed aqainst, which is tlTe Order for Cancettation of Regbtration dated 14 Nouember 2019, is not signed bg the Respondent No.4 uho has issued the order. The said order is merelY u nloaded on the GST Portal u.tithout ang signature. T'he signature LUas affrxed for the first time onlg on 1 9 Ivtoyl 2021 uhen Petitioner had Lo get an cLttestotton from Respondent No.4 jlr the purposes of ftting appeal. This ottestation LDas required precisely l:,ecause the Order for Cancellation of I?egistration dated 14 Nouember 2019 tuas not signed. '/. I?ule 26(3) of the Central Goods and Seruices Tox Rules, 2017 Qnd the poimaterta Maharashtra Goods ond Serulces Tax Rules, 2O 17 requires <trders issued under Chapter III of the tules to be authenticated bll o digital

Thus, the limitation period for ftling the appeol against the Order for Cancellotion of Registration dated 14 Nouember 2019 neuer began because the Order LUo.s not signed in accordance with the ruLes. Alternatiuely, the limitation peiod began onlg from 19 Mag 2021 which is the date on uhich the signature of the Respondent No.4 tuos put on the order for the purposes of "attestation'. The Order of Cancellation of Registration dated 14 Nouember 2O19 as ueLl os the First Appeal Order dated 4 August 202 I are therefore Liable to be quashed and set aside. In the offidauit in replg it is not denied that the- order in originaL dated I 4th Nouember 2019 uLas not digitallg signed. In the alfidauit in replg it is specificalLg stated that tLLe shou cause notice was digitallg signed bg the issuing authoitg but uhen it refers to the order in oiginal dated 14th Nouember 2019 there is total silence about any digital signature being put bg the bsuing authority. ConuenientLg, respondent stated that petitioner cannot take stand of not receiuing the signed copy because the unsigned 4/ 4 908-WP-9331-2022.doc order was admittedtA receiued bg pelitioner eLectronicallg. Hotueuer, if this stand of respondent has to be accepted, then the Rules u.thich prescribe speciftcally that digital stgnature has to be put utill be rendered redundant. In our uietu, untess digital signature is put @ fte

Yet another matter came up before the High Court of Delhi in W.P.No.2872 of 2023, which stood decided on O3.O2.2O23, u'herein in paragraph Nos. 14 to 17 the High Court of Delhi has held as under: Concededlg, the impugned. order atnn.ot be sustained as it is un-signed. Thls r-ssue is couered bg the deciston of a coordinate Bench of thb Court in Railsys Engineers Priaate Limited &, Anr. V. The Add.itional Commissioner of Central Goods and. Seruices Tax (Appeals-Il) & Anr. W.P.(C) 4712/2022, decided on 21 07.2022.: An unsigned notice or an ord.er cdnnot be considered as an order as has been held by the Bombay lTtgh (.ouft in Ramani Suchit Malushte us. Union of India and ors. W.P.(C) 9331/ 2022, decided on 21.09.2022. In uietu of the oboue, the npugned order dated 07.06.2022 is set aside. Since it ls stated that the shotl cause notice dated 06.O2.2021 should be confirmed to the discrepancies as pointed out in the notice dated ()1.01.2021, thts Court does not consider it apposite to set oside the said shotu cause notice but to prouide o-n opportunitA to lle petitioner to ftle a repla to the notice dated 01.01.2021 ctnd O6.02.2021. TLrc said repLg be Jiled u-tithin a period of tuo weeks from todag. I i \ ,t ri l I t,, I '

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 arr un-signed document which lose its efficacy in the light of requirement of Rule 26(3) of the CGST Rules 2017 arrd also under the TGST Act and Rules 2017. The show cause notice as also the impugned order both would not be sustainable and the same deserves to be and is accordingly set aside/quashed. However, the right of the respondents would stand reserved to take appropriate steps strictly in accordalce with law governing the field.

Accordingly, this Writ Petition stands allowed. No order as to costs. Consequently, miscellaneous petitions pending, if any, shall stand closed. . K. VENKAI //// ASSISTANT REGIS SECTION OFFICER \ 'o ,. -n" Assistant commissioner (sr), Baranagar circle, Hyderabad Rural Division, HYderabad, Telangana -

The Principat Secretbryl R""'"n'" Department (Commercial Taxes)' Telanoana secretarilil biai" or r"E"il"^nu .at.Hyderabad'

One iC to sri S.Suri Babu' Advocate t-ufYyl. ;. o;; cc io rtvt Swaroop oorilla, Spl G'P [oPUC]

Two CD CoPies SA GJP ri' .ll