Show Cause Notice Uploaded in "Additional Notices" Tab Without Personal Hearing: Order Set Aside and Remanded.

Show Cause Notice Uploaded in “Additional Notices” Tab Without Personal Hearing: Order Set Aside and Remanded.

Issue:

Whether a Show Cause Notice (SCN) and a subsequent order passed under section 73 of the Central Goods and Services Tax Act, 2017 (CGST Act) / Delhi Goods and Services Tax Act, 2017 (DGST Act) are valid if the SCN was uploaded on the GST portal under the “Additional Notices” tab, allegedly without coming to the knowledge of the assessee, and the impugned order was passed without providing an opportunity of personal hearing.

Facts:

For the period of July 2017 to March 2018, a show cause notice (SCN) was issued to the assessee, and thereafter, an impugned order was passed under section 73. The assessee contended that the SCN, which was the basis for the impugned order, was uploaded on the “Additional Notices” tab of the GST portal, and therefore, it did not come to the knowledge of the assessee. Furthermore, the assessee submitted that the impugned order was passed without providing any opportunity of hearing to the assessee.

Decision:

In favor of the assessee (Matter remanded): Citing the precedent in Neelgiri Machinery v. Commissioner Delhi Goods and Service Tax (Delhi), where a similar situation arose (SCN uploaded via the ‘additional notices tab’ leading to a remand), the court decided to set aside the impugned order. The matter was remanded back, with liberty to the assessee to file a reply to the SCN within 30 days. This decision was based on the principle that if the SCN is placed in a less visible or accessible tab on the portal, it can amount to a denial of a proper opportunity for the taxpayer to respond, violating principles of natural justice.

Key Takeaways:

Effective Service of Notice (Section 169 CGST Act): Section 169 of the CGST Act prescribes various modes for serving notices, including making them available on the common portal. However, judicial pronouncements, like the Neelgiri Machinery case, emphasize that merely uploading a notice on a less prominent or “additional” tab on the GST portal may not constitute proper or effective service, especially if it deprives the assessee of actual knowledge of the notice.
Fundamental Right to Hearing (Natural Justice): It is a cornerstone of administrative law that an assessee must be given a reasonable opportunity of being heard before any adverse order (like a demand order under Section 73) is passed against them. Passing an order without such a hearing, especially when the assessee claims non-receipt of the SCN due to improper portal upload, is a violation of natural justice.
Consequences of Procedural Irregularities: Orders passed without proper service of notice or denial of an opportunity to be heard are procedurally flawed and are susceptible to being set aside by appellate authorities or High Courts.
Remand for Rectification: In such cases, courts often set aside the impugned order and remand the matter back to the adjudicating authority to rectify the procedural lapse, giving the assessee a fresh opportunity to respond to the SCN and be heard. This ensures that the merits of the case are considered after proper due process.
Assessee’s Vigilance: While this ruling is in favor of the assessee, it also implicitly underscores the need for taxpayers to regularly and thoroughly check all sections and tabs on the GST portal for any communications from the tax authorities to avoid missing important notices.

HIGH COURT OF DELHI

K.S. Impex Ltd.

Commissioner of Delhi Goods and Services Tax

PRATHIBA M. SINGH and Rajneesh Kumar Gupta, JJ.

W.P.(C) No. 892 of 2025
CM APPL. No. 4360 of 2025

APRIL 23, 2025

Rajesh Jain, Virag Tiwari, Ramashish, Rishabh Jain, Rajeev Agarwal and Ms. Tanya Saraswat, Advs. for the Petitioner. Abhinav Sharma, Ms. Kalpana Jha, Ms. Aparna Tripathi, Advs. and Nawal Kishore Jha, SPC for the Respondent.

ORDER

Prathiba M. Singh, J.- This hearing has been done through hybrid mode.

2. The present petition has been filed by the Petitioner- K.S. Impex Ltd. challenging the show cause notice dated 24th September, 2023 (hereinafter, ‘the SCN’) issued by the Department of Trade & Taxes upon the Petitioner concern pertaining to the tax period July, 2017 to March, 2018. The petition also challenges the consequent order dated 21st December, 2023 (hereinafter, ‘the impugned order’) passed under Section 73 of the Central Goods and Services Tax Act, 2017 (hereinafter, ‘CGST Act, 2017’)

3. Additionally, the present petition also challenges the Notification No.

9/2023- Central Tax dated 31st March, 2023 issued by the Central Board of Indirect Taxes and Customs (hereinafter, ‘the impugned notification’).

4. The present petition is a part of a batch of petitions wherein inter alia, the impugned notification has been challenged. DJST Traders (P.) Ltd. v. Union of India [W. P. (C) No. 16499 of 2023, dated 23-4-2025] is the lead matter in the said batch of petitions. On the last date of hearing i.e., 22rd April, 2025, the parties were heard at length qua the validity of the impugned notifications and accordingly, the following order was passed:

“4. Submissions have been heard in part. The broad challenge to both sets of Notifications is on the ground that the proper procedure was not followed prior to the issuance of the same. In terms of Section 168A, prior recommendation of the GST Council is essential for extending deadlines. In respect of Notification no.9, the recommendation was made prior to the issuance of the same. However, insofar as Notification No. 56/2023 (Central Tax) the challenge is that the extension was granted contrary to the mandate under Section 168A of the Central Goods and Services Tax Act, 2017 and ratification was given subsequent to the issuance of the notification. The notification incorrectly states that it was on the recommendation of the GST Council. Insofar as the Notification No. 56 of 2023 (State Tax) is concerned, the challenge is to the effect that the same was issued on 11th July, 2024 after the expiry of the limitation in terms of the Notification No.13 of 2022 (State Tax).

5. In fact, Notification Nos. 09 and 56 of 2023 (Central Tax) were challenged before various other High Courts. The Allahabad Court has upheld the validity of Notification no.9. The Patna High Court has upheld the validity of Notification no.56. Whereas, the Guwahati High Court has quashed Notification No. 56 of 2023 (Central Tax).

6. The Telangana High Court while not delving into the vires of the assailed notifications, made certain observations in respect of invalidity of Notification No. 56 of 2023 (Central Tax). This judgment of the Telangana High Court is now presently under consideration by the Supreme Court in HCC-SEW-MEIL-AAG JV v. Assistant Commissioner of State Tax [S.L.P No. 4240 of 2025, dated 21-2-2025]. The Supreme Court vide order dated 21st February, 2025, passed the following order in the said case:

“1. The subject matter of challenge before the High Court was to the legality, validity and propriety of the Notification No.13/2022 dated 5-7-2022 & Notification Nos.9 and 56 of 2023 dated 31-3-2023 & 8-12-2023 respectively.

2. However, in the present petition, we are concerned with Notification Nos.9 & 56/2023 dated 31-3-2023 respectively.

3. These Notifications have been issued in the purported exercise of power under Section 168 (A) of the Central Goods and Services Tax Act. 2017 (for short, the “GST Act”).

4. We have heard Dr. S. Muralidhar, the learned Senior counsel appearing for the petitioner.

5. The issue that falls for the consideration of this Court is whether the time limit for adjudication of show cause notice and passing order under Section 73 of the GST Act and SGST Act (Telangana GST Act) for financial year 2019-2020 could have been extended by issuing the Notifications in question under Section 168-A of the GST Act.

6. There are many other issues also arising for consideration in this matter.

7. Dr. Muralidhar pointed out that there is a cleavage of opinion amongst different High Courts of the country. 8. Issue notice on the SLP as also on the prayer for interim relief, returnable on 7-32025.”

7. In the meantime, the challenges were also pending before the Bombay High Court and the Punjab and Haryana High Court. In the Punjab and Haryana High Court vide order dated 12th March, 2025, all the writ petitions have been disposed of in terms of the interim orders passed therein. The operative portion of the said order reads as under:

“65. Almost all the issues, which have been raised before us in these present connected cases and have been noticed hereinabove, are the subject matter of the Hon’ble Supreme Court in the aforesaid SLP.

66. Keeping in view the judicial discipline, we refrain from giving our opinion with respect to the vires of Section 168-A of the Act as well as the notifications issued in purported exercise of power under Section 168-A of the Act which have been challenged, and we direct that all these present connected cases shall be governed by the judgment passed by the Hon’ble Supreme Court and the decision thereto shall be binding on these cases too.

67. Since the matter is pending before the Hon’ble Supreme Court, the interim order passed in the present cases, would continue to operate and would be governed by the final adjudication by the Supreme Court on the issues in the aforesaid SLP-4240-2025.

68. In view of the aforesaid, all these connected cases are disposed of accordingly along with pending applications, if any.”

8. The Court has heard Id. Counsels for the parties for a substantial period today. A perusal of the above would show that various High Courts have taken a view and the matter is squarely now pending before the Supreme Court.

9. Apart from the challenge to the notifications itself, various counsels submit that even if the same are upheld, they would still pray for relief for the parties as the Petitioners have been unable to file replies due to several reasons and were unable to avail of personal hearings in most cases. In effect therefore in most cases the adjudication orders are passed ex-parte. Huge demands have been raised and even penalties have been imposed.

10. Broadly, there are six categories of cases which are pending before this Court. While the issue concerning the validity of the impugned notifications is presently under consideration before the Supreme Court, this Court is of the prima facie view that, depending upon the categories of petitions, orders can be passed affording an opportunity to the Petitioners to place their stand before the adjudicating authority. In some cases, proceedings including appellate remedies may be permitted to be pursued by the Petitioners, without delving into the question of the validity of the said notifications at this stage.

11. The said categories and proposed reliefs have been broadly put to the parties today. They may seek instructions and revert by tomorrow i.e., 23rd April, 2025. “

5. As observed by this Court in the order dated 22nd April, 2025 as well, since the challenge to the above mentioned notifications is presently under consideration before the Supreme Court in HCC-SEW-MEIL-AAG JV v. Assistant Commissioner of State Tax [S.L.P No. 4240 of 2025, dated 21-2-2025], the challenge made by the Petitioner to the impugned notification in the present proceedings shall also be subject to the outcome of the decision of the Supreme Court.

6. On facts, however, the submission of the Petitioner is that the SCN dated 24^th September, 2023, from which the impugned order arises, was uploaded on the ‘Additional Notices Tab’ therefore, the same did not come to the knowledge of the Petitioner. The impugned order dated 21st December, 2023 was passed without providing the Petitioner a personal hearing and in the absence of a reply on behalf of the Petitioner.

7. In fact this Court in Neelgiri Machinery v. Commissioner Delhi Goods and Service Tax W.P.(C) 13727/2024/ (Delhi), under similar circumstances where the SCN was uploaded vide ‘Additional Notices Tab’ had remanded the matter in the following terms:

“6. Be that as it may, intention is to ensure that the Petitioner is given an opportunity to file its reply and is heard on merits and that orders are not passed in default. Since there is no clarity on behalf of the Department, this Court follows the order dated 9^th September, 2024 in Satish Chand Mittal (Trade Name National Rubber Products) v. Sales Tax Officer SGST, Ward 25-Zone 1 (W.P.(C) 12589/2024; DHC) as also order dated 23rd December, 2024 in Anant Wire Industries v. Sales Tax Officers Class II/Avato, Ward 83 & Anr (W.P.(C) 17867/2024; DHC) where the Court under similar circumstances has remanded back the matter to ensure the Noticee/petitioners get a fair opportunity to be heard. The order of the Court in Sathish Chand Mittal (supra) reads as under:

“4. It is the petitioner’s case that he had not received the impugned SCN and, therefore, he had no opportunity to respond to the same. For the same reason, the petitioner claims that he had not appear for a personal hearing before the Adjudicating Authority, which was scheduled on 17.10.2023 and later rescheduled to 30.11.2023 as per the Reminder.

5. The petitioner also states that the impugned SCN, the Reminder and the impugned order are unsigned.

6. Mr. Singhvi, the learned counsel appearing for the respondent, on advance notice, fairly states that the principal issue involved in the present case is squarely covered by the decisions of this Court in M/s ACE Cardiopathy Solutions Private Ltd. v. Union of India & Ors. : Neutral Citation No. 2024:DHC:4108-DB as well as in Kamla Vohra v. Sales Tax Officer Class II/ Avato Ward 52 : Neutral Citation No.2024:DHC:5108- DB.

7. He states that possibly, the petitioner did not had the access of the Notices as they were projected on the GST Portal under the tab ‘Additional Notices & Orders’. He submits that the said issue has now been addressed and the ‘Additional Notices & Orders’ tab is placed under the general menu and adjacent to the tab ‘Notices & Orders’ 8. In view of the above, the present petition is allowed and the impugned order is set aside.

9. The respondent is granted another opportunity to reply to the impugned SCN within a period of two weeks from date. The Adjudicating Authority shall consider the same and pass such order, as it deems fit, after affording the petitioner an opportunity to be heard.

10. The present petition is disposed of in the aforesaid terms.

11. All pending applications are also disposed of.”

7. The impugned demand orders dated 23^rd April, 2024 and 5th December, 2023 are accordingly set aside. In response to show cause notices dated 04^th December, 2023 and 23th September, 2023, the Petitioner shall file its replies within thirty days. The hearing notices shall now not be merely uploaded on the portal but shall also be e-mailed to the Petitioner and upon the hearing notice being received, the Petitioner would appear before the Department and make its submissions. The show cause notices shall be adjudicated in accordance with law.

8. The petitions are disposed of in the above terms. The pending application(s), if any, also stand disposed of.”

8. It is relevant to note that post 17^th January 2024, the Department has effected changes in the portal to ensure that the SCNs become visible to parties. However, the SCN in the present case is of September 2023, therefore, following the above decision in W.P.(C) 13727/2024, the impugned order is set aside.

9. Let the reply be filed within 30 days. Thereafter the Petitioner shall be also given a personal hearing and the notice for personal hearing shall be sent to the Petitioner on the following email ID and phone number:

Mobile No.: 9810042928 E-mail Address: RajeshRoshanjain@gmail.com

10. Let the entire matter be considered afresh and an order be passed on merits after duly considering the reply and the submissions made by the Petitioner in the personal hearing.

11. However, it is made clear that the issue in respect of the validity of the impugned notifications is left open. Any order passed by the Adjudicating Authority shall be subject to the outcome of the decision of the Supreme Court.

12. The present writ petition is disposed of in above terms. All the pending applications, if any, are also disposed of.