Unsigned Order Is No Order In The Eyes Of Law 

Facts: The Petitioner filed the writ petition before the Hon’ble High Court challenging the impugned order dated 28.03.2023 passed under Section 73(9) of the APGST/CGST Act, 2017 passed by the Assistant Commissioner (ST), Bheemili, Visakhapatnam, I Division.

Petitioner Submissions: –

• It was submitted on the behalf of the Petitioner that impugned order is unsigned and is ‘no order in the eyes of law’ which cannot be enforced.
• Further, it was submitted that the order has been passed on the ground that upon verification of the bank statement of the tax payer, it was found that they received payment of Rs. 93,62,630/- from the Andhra Pradesh Mineral Development Corporation Limited in the Financial Year 2020-21, which was not reflected in their GSRTR – 3B return, but in the show cause notice dated 31.01.2023, the said ground was not mentioned. In his submission, the show cause notice is on one ground and the order has been passed on different ground.
• The petitioner had no opportunity of reply, to the ground on which the order has been passed resulting into violation of the principles of natural justice.

Respondent Submission: –

• On the behalf of the respondent, it was submitted that the impugned order has not been signed as on today. However, it was submitted that the said order was uploaded and the uploading could be done only by the Authority competent to pass the order.
• Placing reliance on Section 160 of the CGST Act 2017, it was submitted that no assessment, re-assessment, initiated in pursuance of any of the provisions of the GST Act, shall be invalid or deemed to be invalid merely by reason of any mistake, defect or omission therein, if such assessment, etc are in substance and effect in conformity with or according to the intents, purposes and requirements of the Act or any existing law. Further, reliance was also placed on Section 169.

Held: –

• The Hon’ble Court after considering the submissions made, facts of the case and perusal of Section 160 & Section 169, found that Section 160 of CGST Act 2017 is not attracted. An unsigned order cannot be covered under “any mistake, defect or omission therein” as used in Section 160. The said expression refers to any mistake, defect or omission in an order with respect to assessment, re-assessment; adjudication etc and which shall not be invalid or deemed to be invalid by such reason, if in substance and effect the assessment, re-assessment etc is in conformity with the requirements of the Act or any existing law. These would not cover omission to sign the order.
• It was found by the Hon’ble Court that Unsigned order is no order in the eyes of law. Merely uploading of the unsigned order, may be by the Authority competent to pass the order, would, in our view, not cure the defect which goes to the very root of the matter i.e., validity of the order.
• Further, it was also found that in the present case Section 169 of CGST Act 2017 is also not attracted. Here, the question is of not signing the order and not of its service or mode of service.
• Thereafter, the Hon’ble Court referring to the decision relied upon by the Petitioner in V. Bhanoji Row vs. Assistant Commissioner (ST) in W.P. No. 2830 of 2023 decided on 14.02.2023, wherein it was held that ‘the signatures cannot be dispensed with and the provisions of Sections 160 and 169 of CGST Act would not come to the rescue.’, held that the Writ Petition deserves to be allowed on the first ground itself.
• The Hon’ble Court without entering in to the merit of the second ground, leaving it open to the concerned Authority to consider, if the ground as in the impugned order, is different than the one contained in the show cause notice, and if it is so, it shall be open for the Authority to issue fresh notice, if it is proposed to proceed on such ground, allowed the writ petition in part on the ground that the order does not contain signatures.

The Hon’ble Court with the above findings, set aside the impugned order with the direction to the Competent Authority to issue fresh order in accordance with law considering the petitioner’s reply already filed.

To read the complete judgment 2023 Taxo.online 1319