The Orissa High Court has refused to condone the delay of 2.5 years and held that even though the petitioner has not been communicated with the order physically, since the same was made available on the common GST portal, it is deemed to have been served on him.
The court observed that Section 169 (1)(d) of the GST Act provides for the service of notice in case of any decision, order, summons, notice, or other communication by making it available on the common portal.
The petitioner/assessee is a proprietorship concern and is registered under the Goods and Services Tax Act, 2017. The department issued a show cause notice on October 1, 2021, to the petitioner under Section 74 of the OGST Act, 2017, alleging that although the petitioner has received an amount of Rs. 4,14,427 for execution of the works contract, as ascertained from the WAMIS Data, the petitioner has entered ‘NIL’ in the GSTR 3B returns filed by it for the period December 2018, for which the petitioner is liable to pay Rs. 1,23,398.00. The petitioner filed its reply, contending therein that it had received the payment for the period December 2018 on December 28, 2018, which is after the due date of filing of GSTR 3B.
The petitioner has shown the transaction for the subsequent tax period in the GSTR 3B filed by the petitioner for the month of February, 2018, which is within the financial year 2018-19 and falls before the due date of filing of the annual return for the aforesaid period. The petitioner, after receipt of the show cause notice dated October 1, 2021, brought the aforesaid facts and documents to the notice of the department and explained the same for the filing of the ‘NIL’ return for the period December 2018.
The department passed an order under Section 74 (9) of the OGST Act, 2017 directing the petitioner to make payment of an amount of Rs. 1,25,240 by January 7, 2022, failing which recovery proceedings would be initiated against the petitioner under Section 79 of the OGST Act, 2017.
The assessee contended that even though the order was passed on December 7, 2021, it was brought to the notice of the petitioner very recently, for which the petitioner could not avail the alternative remedy and approached the writ court challenging it. The order has been passed without verifying the returns filed by the petitioner, and, as such, it is illegal, arbitrary, and a violation of the principle of natural justice.
The department contended that since the statutory remedy of filing an appeal is available to the petitioner, as against the order impugned, the present writ petition is not liable to be entertained. Much after the expiry of the prescribed period of limitation, the petitioner has approached the Court by filing the writ petition, which is not maintainable.
The court, while dismissing the petition, held that Section 169(1)(d) of the OGST Act, 2017 provides that if the order is made available on the common portal, the same will be treated as having been served on the petitioner. Since the petitioner is a registered dealer and the order was made available in the common portal, the petitioner cannot raise the issue that it has no knowledge of passing adjudicatory order.
Case Details
Case Name: M/s. Laxmi Construction v/s State Tax Officer, CT & GST Circle, Barbil
Citation: W.P.(C) NO. 9545 OF 2024
Court: Orissa High Court
Judges: Dr. Justice B.R.Sarangi And Mr Justice G. Satapathy
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