Allahabad High court Asks: When Can Deeming Service Under Clause (C) and Clause (D) Of Section 169 (1) Be Said To Be Deemed Service Under Section 169(2) Of The GST Act


The Allahabad High Court in the case M/S Virender Kumar Projects Pvt Ltd v. State Of U.P. And 2 Others observed and has asked the State to explain, ‘as to how and under what manner, the deeming service stated as per clauses (c) and (d) of sub-section (1) of section 169 can be said to be deemed service as per sub-section (2) of section 169 of the Goods and Service Tax Act.
In the present case, the court initiated the proceedings against the Petitioner as stated under Section 74 of the GST Act, 2017 wherein an ex-parte order was passed without affording any opportunity for personal hearing to the Petitioner. Therefore, the ex-parte order dated December 03, 2021 was being uploaded on the portal.
The said petitioner came to it, when the recovery proceedings were being initiated and DRC-09 dated February 25, 2023 were issued to the bank of the petitioner.
Further, an appeal was filed before the court in April 2023 and the said court rejected the same on the grounds that there was delay in filing the appeal. Thus, the orders are immediately being available on the dashboard of the portal. Since the date of the order is December 03, 2021 and the same shall be treated as the date of communication of the order.
Therefore, the order of the Appellate Authority has been challenged before the High Court which being on the ground that an appeal filed by the petitioner against an order of the Assessing Authority was rejected by mistaking the date of the order to be the date of the communication.
The counsel appearing for the petitioner submitted before the court that that merely uploading the order on the portal does not amount to the communication of the order. Thus, the said order needs to be communicated only when the person concerned gains knowledge of the same.
Further, the counsel appearing for the petitioner submitted before the court that the service through email and through the common portal are not deemed to be service as stated under Section 169(2). Therefore, the challenge to the order dated 03.12.2021 was within limitation as the date of communication was March 22, 2023.
The bench headed by Justice Piyush Agrawal in the case observed seek specific averments as to whether service of an order deemed to be made by email or by the posting of the common portal be treated as an order served as stated under Section 169(2) of the GST Act.
Accordingly, the court listed the matter to be heard for further consideration on September 11, 2023 and has granted time to the State to file the counter affidavit.