Calcutta High Court (Appellete Side)
M/S Carry Co vs Union Of India & Ors on 9 June, 2025
09.06.2025
sayandeep
Sl. No. 20
ML
Ct. No. 05
WPA 2774 of 2025
M/s Carry Co, Prop: Mr. Kajal Kumar Garai
Vs.
Union of India & ors.
Mr. Pratip Mukherjee
Mr. Raju Mondal
Mr. P. Biswas
.... for the petitioner
Mr. Anirban Ray, Ld. GP
Mr. Md. T. M. Siddiqui, Ld AGP
Mr. Nilotpal Chatterjee
Mr. Tanoy Chakraborty
Mr. Saptak Sanyal
..... for the State
Mr. Kaushik Dey
Mr. Tapan Bhanja
....for the CGST authority
1. Challenging the order dated 24th December, 2024 passed by
the appellate authority under Section 107 of the
WBGST/CGST Act, 2017 (hereinafter referred to as the said
Act), rejecting the petitioner‟s appeal on the ground of delay,
the present writ petition has been filed.
2. At the very outset, Mr. Majumder, learned advocate appearing
in support of the writ petition by drawing attention of this
Court to the provisions of Section 169 of the said Act would
submit that though the order impugned was uploaded on the
portal, however, considering the fact that no service was
effected by adhering to the mode of service provided for in
Section 169(1) Clauses (a) to (c) of the said Act, the service on
the portal cannot be said to be complete and hence, it cannot
be said that there was any delay on the part of the petitioner
in preferring the appeal. In support of his contention that the
State is obliged to comply with Clauses (a) to (c) of sub Section
1 of Section 169 at the first instance and only thereafter can
2
choose to rely on the service as contemplated in Clause
169(1)(a) of the said Act, reliance is placed on the Judgment
delivered by the Madras High Court in the case of P. N.
Traders vs. Deputy State Tax Officer, reported in (2025)27
Centax 383 (Mad.).
3. In any event, he would submit that the appellate authority
without appropriately considering the petitioner‟s application
for condonation of delay has dismissed the appeal which is
not permissible.
4. Mr. Chakraborty, learned advocate enters appearance on
behalf of the respondents. He would submit that language
used in Section 169(1) of the said Act makes it abundantly
clear that service of notice by any of the modes provided for in
sub-Section 1 Clauses (a) to (f) constitutes good service, with
the only restriction that in the event service through the
modes contemplated in Clause (a) to (d) or (e) is not possible
then only the notice as contemplated in Section 169(1)(f) of
the said Act can be issued.
5. In the instant case, however, the notice of the order was
through the portal which is as per Clause (d) of Sub-Section 1
of Section 169 of the said Act. According to him, the aforesaid
constitutes good service. As such the petitioner cannot be
permitted to claim that service of the order through the portal
is not a good service or can only be effected if the other modes
of service under Clauses (a) to (c) cannot be employed. As
such the petitioner cannot claim that the delay has occurred
since no notice communicating the aforesaid order was served
on the petitioner.
6. Heard learned advocates appearing for the respective parties
and consider the materials on record. Having regard to the
3
contention raised by the petitioner, it would transpire that the
petitioner seeks to challenge the mode of communication of
the order through the online portal and claims that unless
State complies with and exhausts the mode of communication
as provided under Section 169(1) Clauses (a) to (c) at the first
instance, the State cannot be permitted to rely on the mode of
communication provided for in Clause 169(1)(d) of the said
Act, to establish service of the order on the petitioner.
7. Admittedly, in this case, the order issued under Section 73 of
the said Act for the tax period of 2017-2018 to 2019-2020 was
preceded with a show-cause notice. The show-cause was duly
uploaded on the portal. The petitioner had duly responded to
the show-cause and thus, had notice of the proceeding.
8. Subsequently, the order under Section 73(9) of the said Act
dated 28th December, 2023 was passed and was also
uploaded on the portal. On this occasion, however, the
petitioner would complain that the service on the portal in
absence of service of the order through the other modes as
contemplated under Clauses (a) to (c) at the first instance, do
not constitute good service. To test out the petitioner‟s case, it
is necessary to consider the provisions of Section 169 of the
said Act. To morefully appreciate the same, the aforesaid
section is extracted herein below:
“169. Service of notice in certain
circumstances. (1) Any decision, order,
summons, notice or other communication
under this Act or the rules made thereunder
shall be served by any one of the following
methods, namely:-
(a) by giving or tendering it directly or by a
messenger including a courier to the
addressee or the taxable person or to his
manager or authorised representative or an
advocate or a tax practitioner holding
authority to appear in the proceedings on
behalf of the taxable person or to a person
regularly employed by him in connection with
4the business, or to any adult member of
family residing with the taxable person; or
(b) by registered post or speed post or courier
with acknowledgement due, to the person for
whom it is intended or his authorized
representative, if any, at his last known place
of business or residence; or
(c) by sending a communication to his e-mail
address provided at the time of regis
registration or as amended from time to time;
or
(d) by making it available on the common
portal; or
(e) by publication in a newspaper circulating
in the locality in which the taxable person or
the person to whom it is issued is last known
to have resided, carried on business or
personally worked for gain; or
(f) if none of the modes aforesaid is
practicable, by affixing it in some conspicuous
place at his last known place of business or
residence and if such mode is not practicable
for any reason, then by affixing a copy thereof
on the notice board of the office of the
concerned officer or authority who or which
passed such decision or order or issued such
summons or notice.
(2) Every decision, order, summons, notice or
any communication shall be deemed to have
been served on the date on which it is
tendered or published or a copy thereof is
affixed in the manner provided in sub-section
(1).
(3) When such decision, order, summons,
notice or any communication is sent by
registered post or speed post, it shall be
deemed to have been received by the
addressee at the expiry of the period normally
taken by such post in transit unless the
contrary is proved.”
9. Having considered the provisions of Section 169 (1) and
Section 169 (2) and Section 169(3) of the said Act, it would
be amply clear that any decision or order or summon or
notice or other communication of the Act or the Rules
made thereunder shall be served by one of the modes
provided for under the various clauses of sub-Section 1 of
Section 169 of the said Act. It transpires therefrom that
Clause (a) provides for giving or tendering the notice or
order or other communication under the said Act as the
5
case may be, directly or by messenger including a courier
to the addressee or to a taxable person. Clause (b)
provides for service of such notice or order or
communication as the case may be by registered post
while Clause (c) provides for sending the communication to
the E-mail address provided at the time of registration or
as amended from time to time. While the mode of service
in the case of Clause (d) contemplate, by making the same
available on common portal. Alternatively, as per Clause
(e), the mode of service is by publication in the newspaper.
Thus, the mode of service provided in the above clauses
are all in the alternative and the same is amplified by use
of the word „or‟ after each clause.
10. Insofar as the Clause (f) is concerned, the same starts
with the words “if none of the mode aforesaid is
practicable”. Having regard to the clear language used in
Clause (f), it would transpire that only if the manner of
service as contemplated in Clauses (a) to (e) of sub-Section
1 of Section 169 is not practicable then and in such
circumstances the mode and manner of service through
Section 169(1) Clause (f) is permissible. In addition
thereto, a perusal of the provisions contained in sub
Sections 2 and 3 would clearly establish that a decision or
order or summon or notice or communication as the case
may be is required to be effected or is deemed to have been
served on the date on which the same is tendered or
published or a copy is affixed as per Clause 1.
11. Having regard thereto, the making the same available
on the portal or publication in the newspaper, under
Clauses (d) or (e) as the case may be, can be said to be
6
sufficient communication of decision, order, summon,
notice as the case may be. Sub-Section 3 of Section 169
does not support the petitioner‟s case either. Although, in
the Judgment delivered in the case of P.N. Traders
(supra), by quoting a passage from WP (MD)No. 26481 of
2024 the Coordinate Bench of the Hon‟ble Madras High
Court had set aside the order of assessment and though
Mr. Mukherjee by relying on paragraph 7 of the said
Judgment has attempted to make out a case that Section
169 mandates service of notice in-person or by registered
post or to the registered e-mail at the first instance and
alternatively, on the failure to complete service through the
aforesaid modes that making the same available on the
portal or publication through the newspaper would
constitute good service, I am unable to accept the same
especially having regard to the clear language employed in
Section 169 of the said Act. It is well settled that for the
purpose of interpretation of the statute, the unambiguous
and plain language of the statute has to be given
preference.
12. In the instant case, I find that the unambiguous and
plain language employed in Section 169(1) read with sub-
Sections 2 and 3 makes it amply clear that the service of
notice can be effected by any of the modes provided for in
Clauses (a) to (f) of Section 169(1) of the said Act. The only
restriction in my view in effecting service, is found in
Clause 169(1)(f) since, the opening words of the said
Clause requires that “if none of the modes as aforesaid is
practicable”, that is to say modes of service provided for in
Clauses (a) to (e) is not practicable, then the mode of
7
service as provided in Clause (f) can be applied. Thus,
having regard to the clear language employed in Section
169 of the said Act, no view, contrary to the intention
expressed in the above section is acceptable. As such I
respectfully disagree with the view expressed by the
Hon‟ble Madras High Court in the case of P.N. Traders
(supra).
13. In view thereof, I am unable to accept the contention of
Mr. Mukherjee that service of notice of the order under
Section 73 of the said Act on the petitioner was not
complete without a personal service thereof on the
petitioner as per the mode provided in Section 169(1)
Clauses (a) to (c) of the said Act.
14. On the issue of consideration of the application for
condonation of delay, I find that the appellate authority
had mechanically by relying on the provisions of sub-
Section 4 of Section 107 of the said Act and by treating
that it has no power to condone the delay beyond the
extended period of one month, had rejected the appeal. In
this context, I may note a Division Bench of our High
Court in the case of S.K. Chakraborty & ors. vs. Union
of India (MAT 81 of 2022 & MAT 82 of 2022) has
already taken a view on the power of the appellate
authority to condone the delay beyond the extended
period of one month. Having regard thereto, I am unable to
accept the reasoning provided by the appellate authority.
15. In view thereof, I set aside the order dated 24th
December, 2024.
16. Considering the case made out by the petitioner and
the explanation provided though, the explanation does not
8
appear to be entirely sufficient however, considering the
fact that at present the appellate tribunal is yet to be
constituted and in the fitness of things it would only be
appropriate to direct the appellate authority to hear out
and dispose of the appeal on merit subject however, the
petitioner making payment of a sum of Rs. 25,000/- to the
Secretary, High Court Legal Services Committee, High
Court, Calcutta.
17. In the event the petitioner makes payment of the
aforesaid amount within a period of 4 weeks from date, the
appellate authority having regard to the observations made
herein shall hear out the appeal on merits by giving
opportunity of hearing to the petitioner.
18. With the above observations and directions, the writ
petition is disposed of.
(Raja Basu Chowdhury, J.)
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