An ex-parte assessment order passed without proper service of a show cause notice is a violation of natural justice and will be set aside.

By | June 28, 2025

An ex-parte assessment order passed without proper service of a show cause notice is a violation of natural justice and will be set aside.

Issue

  1. Whether an ex-parte assessment order under Section 73 of the CGST Act is valid if the assessee was not properly served with the show cause notice, particularly when the notice was uploaded to a less conspicuous tab (“view additional notices and orders”) on the GST portal without any physical or email communication.
  2. What is the appropriate remedy for an assessee who has been rendered remediless because the ex-parte order was passed without their knowledge, leading to the subsequent dismissal of their appeal on the grounds of being time-barred?

Facts

The petitioner challenged an ex-parte assessment order that confirmed a demand for tax, interest, and penalty. The petitioner contended that they were never served with the reminder show cause notice that preceded the order. Consequently, they had no knowledge of the proceedings being conducted against them.

The authorities had uploaded the notice and the subsequent order to the GST portal, but placed them under the tab “view additional notices and orders” rather than the primary notice section. No physical copy was served, and no email intimation was sent to the petitioner. The petitioner only became aware of the adverse order upon discovering it on the portal’s dashboard. By the time they discovered the order and filed an appeal, the statutory time limit had lapsed, and the appeal was rejected on the ground of delay. The petitioner argued that the lack of proper service denied them the opportunity to defend their case and that the dismissal of the appeal left them without any remedy.

Decision

The High Court ruled in favour of the assessee, setting aside the ex-parte assessment order and the appellate order dismissing the appeal. The Court held that the petitioner was denied a fair opportunity to present their case due to the absence of proper service of the show cause notice.

Recognizing that the petitioner had been rendered remediless, the Court adopted a constructive approach. Instead of merely quashing the order, the Court directed that the impugned ex-parte assessment order itself should be treated as a show cause notice under Section 73 of the CGST Act. This unique direction allows the petitioner to file a reply and submit all relevant documents before the assessing officer for fresh consideration. This decision ensures that the principles of natural justice are upheld without nullifying the proceedings entirely, thereby balancing the rights of the assessee and the interests of the revenue.

Key Takeaways

  • Proper Service of Notice is Mandatory: Effective communication and proper service of notices are fundamental to the principles of natural justice. Uploading a notice to an obscure or less-frequented tab on the GST portal, without any other form of intimation (like email or physical post), does not constitute valid service.
  • Violation of Natural Justice: Passing an ex-parte order without ensuring the assessee has received the show cause notice is a clear violation of the principle of audi alteram partem (let the other side be heard).
  • Remedy for Procedural Lapses: When an assessee is denied the statutory remedy of appeal due to a delay caused by the department’s failure to properly communicate the order, the High Court can intervene under its writ jurisdiction.
  • Ex-Parte Order as a Notice: In cases of procedural failure by the tax authorities, courts can creatively fashion remedies. Treating a final order as a show cause notice is an effective way to restore the assessee’s right to be heard while allowing the department to continue the assessment proceedings from the stage of the error.
HIGH COURT OF ALLAHABAD
Som Fragrances (P.) Ltd.
v.
State of U.P.
Ajit Kumar, J.
WRIT TAX No. 1987 of 2025
MAY  16, 2025
Shubham Agrawal for the Petitioner.
ORDER
1. Heard learned counsel for the petitioner and learned Standing Counsel.
2. Invoking extra ordinary jurisdiction of this Court under Article 226 of the Constitution, petitioner, a company engaged in the business of trading of unserviceable store goods under the Goods and Services Tax Act, 2017 and hence seeks to challenge the order dated 26.03.2025 passed in appeal by Additional Commissioner Grade II, first appellate authority.
3. Submission advanced by learned counsel for the petitioner is that that order of assessing officer fastening the petitioner concerned with a liability of tax upon the sale for the relevant financial year in question alongwith interest and penalty in purported exercise of power under Section 73 of the GST Act, is absolutely ex parte one as neither alleged reminder show cause notice was ever brought to the knowledge of the petitioner, nor service of the same was physically ever effected upon petitioner. Petitioner got knowledge of the proceedings conducted its back when the order came to be uploaded on the dash board with the tab “view additional notices and orders”. Thus, it is argued that petitioner having failed to notice the reminder it could not make any reply at all.
4. It is also claimed that the order dated 30.12.2023 was also not communicated on e-mail to the petitioner. It is further pleaded that no sooner did petitioner come to know the order of assessing officer in February, 2025, petitioner immediately preferred statutory appeal before first appellate authority, however, same has been rejected on the ground of it being barred by time. Thus, two fold submissions have been advanced by the learned counsel for the petitioner:
i. In the absence of service of reminder petitioner was denied opportunity to put up its defence so as to justify no liability of tax qua business of trading and sale under the GST; and ii. Remedy of appeal having been denied on the ground of delay that was for want of knowledge, petitioner has been rendered remediless.
5. Learned counsel for the petitioner further submitted that controversy qua issue of show cause notice not being effected upon for it being not available upon tab ‘view notices and orders’ at the GST Portal and then rendering the party defenseless in the matter of liability of tax under the GST Act is no more res integra. It is submitted that division bench of this Court in the Ola Fleet Technologies (P.) Ltd. v. State of U.P. [2025] 170 taxmann.com 66 (All.)/(Writ Tax No. 855 of 2024 decided on 22.07.2024) has dealt with this aspect of the matter and it has been held that no material existed to reject the contention advanced on behalf of the petitioner that order impugned imposing liability of tax was not reflecting under tab ‘view notices and orders’ and so there remained a valid dispute as to non consideration/consideration of the various documents of returns available which could have been shown in reply to the show cause notice.
6. The division bench was of the view that party under liability of tax in an ex parte order needs at-least an opportunity to put up his defense by submitting papers which may have led assessing officer to uphold the claim for exemption from tax liability. The division bench accordingly, instead of keeping the matter pending disposed off the same with a direction that impugned order may be taken as notice to enable the petitioner to submit his reply and thereafter assessing officer may have to pass a fresh order.
7. This above division bench judgment in Ola Fleet Technologies Pvt. Ltd (supra) was followed by another division bench in the matter Shyam Roshan Transport v. State of U.P. [2024] 169 taxmann.com 301 (Allahabad)/(Writ Tax No. 1756 of 2024 decided on 21.10.2024) and again division bench in the matter of Atul Agrwal v. State of U.P. [Writ Tax No. 1585 of 2024, dated 18-10-2024].
8. The view taken by the division benches as cited before the Court are absolutely correct on the principle that nobody should be condemned unheard and legislature while incorporating the provision of notice/ show cause notice, intended so.
9. Recently, in the matter of Akriti Food Industry LLP v. State of U.P. [2025] 170 taxmann.com 801 (All.)/Writ Tax No. 2070 of 2024 decided on 3.12.2024, the Court has set aside the identical order. Accordingly, I also do not find the orders to be sustainable and equally do not consider it necessary to keep this petition pending by inviting response.
10. In view of above, I hereby direct that the order passed by the assessing officer dated 30.12.2023 shall be taken to be notice within the meaning of Section 73 of the GST Act, 2017 to enable the petitioner to file his objections and place its documents before assessing officer/ competent authority for its consideration.
11. The petitioner shall be submitting his reply alongwith document within a period of eight weeks from today and thereafter assessing officer/competent authority shall be giving due consideration to the objections and documents filed and opportunity of hearing as well and thus shall be taking decision afresh within a further period of four weeks.
12. With these above observations and directions this petition stands disposed of.