It is very common to read through out the CGST Rules, 2017 that communication has to be made electronically and it’s our general understanding too that all communications in GST would be made “electronically”.
However, at first this is not true as CGST Act has not mandated it anywhere and further CGST Rules do not always provide that communication should be always be made “electronically” and secondly it’s very common to see that some communications are being served on email of the taxpayer through the email ID of the proper officer and some are served on common portal by the proper officer. The issue gets more important because if the notices are not replied for, there is a very strict mechanism for passing the order to the best of the judgement of the proper officer. So lets try to analyse the issue and see what we have goth through the statute and the rules made thereunder.
Section 169 of CGST Act, 2017provides for service of notice in certain circumstances and nowhere provides that all communications have to be made electronically
Section 169 of CGST Act prescribes six mode of service of decision, order, summons, notice or other communication. Out of the six modes, Section 169 provides that any one of the modes can be selected for service of the decision, order, summons, notice or other communication the CGST Act or the rules made thereunder. It nowhere provides that all communications have to made electronically. The six modes are as follows-
a) by giving or tendering it directly or by a messenger including a courier- The communication can be serviced by giving or tendering it directly or by a messenger including a courier to the specified persons. The specified persons are
- Addressee, or
- The taxable person, or
- To manager of the taxable person, or
- to the authorised representative if the taxable person, or
- To 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 the business, or
- To any adult member of family residing with the taxable person.
b) Registered post or speed post or courier with acknowledgement due-The communication can be sent by registered post or speed post or courier with acknowledgement due, to the specified person at his last known place of business or residence. The specified person in such cases is either the person for whom it is intended or his authorised representative.
c) E-Mail Address- The communication can be sent to e-mail address of the taxable person provided at the time of registration or as amended from time to time.
d) Common Portal- The communication can be made available on the common portal.
e) Publication in News Paper-The communication can be published in a newspaper circulating in the locality of the specified person in which he is last known to have resided, carried on business or personally worked for gain. The specified person is
- The taxable person or
- The person to whom it is issued
f) In cases none of the modes are practicable-if none of the modes aforesaid is practicable, the communication can be affixed 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.
CGST Rules, 2017 provides at many places that the communication has to be made electronically-Are the provisions of the CGST Rules overriding the provisions of Statute as Section 169 provides that communication can be made by any of the six modes
Section 169 of the CGST Act, 2017 provides that the communication can be sent by any of the modes as provided thereunder. However, it can be seen that CGST Rules, 2017 at many places provide that communication has to be made electronically. Thus, the rules are restricting the mode of communication which was left by any of the six modes by virtue of Section 169 of CGST Act, 2017. Are the Rules overriding the provisions of CGST Act, 2017.
Term “electronically” has not been defined in the Statute and i.e. whether it means communication to be sent on e-mail or to be uploaded on common portal; Section 169 treats sending on email ID and uploading on portal as different modes of communication.
Although CGST Rules, 2017 provides at many places that communication has to be made electronically but nowhere has the CGST Act, 2017 mandated that the communication has to be made electronically. Further, nowhere it has been specified that what is meant by the term “electronically” i.e. whether it means communication to be sent on e-mail or to be uploaded on common portal or to be sent on mobile number and Section 169 of CGST Act treats sending on email ID and uploading on portal as different modes of communication.
It would be apt to highlight here that once the notice is uploaded on portal then an instant communication of the same is made on the registered email ID and the mobile number of the taxpayer. The issue has been left open ended by the Statute.
Terminology and the Scope of the term “electronically” has been used in vague manner across the rules
Let’s try to see if the CGST Rules, 2017 provide us any clue regarding what is meant by term “electronically”. But sadly, rules also do not provide any clarity on the matter about what is meant by the term “electronically”, whether it means sending through to the email or being uploaded on the common portal or whether a free hand has been given in the law to send the communication whatever electronic mode is available.
Interestingly, let’s see the ambiguity with which the term “electronically” has been used with the activity “issued”, “made available”, “informed”, “served”, “uploaded” and that too at some places “on the common portal” and at some places nothing has been specified and has been left open ended. Some of the specific circumstances with examples are as follows-
a) Relevant Provisions providing that the communication shall be issued electronically (whether or not through the portal not specified)-Some places it has been provided that communication shall be issued electronically although it has not been provided whether such communication has to be through the portal or not.
| Rule | Particulars |
| 8(5) | An acknowledgement shall be issued electronically to the applicant in FORM GST REG-02 |
| 9(2) | He may issue a notice to the applicant electronically in FORM GST REG-03 within a period of three working days from the date of submission of the application and the applicant shall furnish such clarification, information or documents electronically, in FORM GST REG-04 |
| 19(1)(A) | Issue an order in FORM GST REG-15 electronically |
| 68 | A notice in FORM GSTR-3A shall be issued, electronically, to a registered person who fails to furnish return under section 39 or section 44 or section 45 or section 52 |
b) Relevant Provisions providing that the communication shall be made available electronically on/through the portal- At some places it has been specifically provided that communication shall be made available electronically on/through the portal.
| Rule | Particulars |
| 24(2)(C) | A certificate of registration in FORM GST REG-06 shall be made available to the registered person electronically on the common portal. |
| 90(1) | Where the application relates to a claim for refund from the electronic cash ledger, an acknowledgement in FORM GST RFD-02 shall be made available to the applicant through the common portal electronically |
c) Relevant Provisions providing that the applicant shall be informed electronically (whether or not through the portal not specified)-At some places it has been provided that applicant shall be informed electronically although it has not been provided whether such communication has to be through the portal or not.
| Rule | Particulars |
| 9(4) | Reject such application and inform the applicant electronically in FORM GST REG05 |
d) Relevant Provisions providing that the applicant shall be served electronically (whether or not through the portal not specified) –At some places, it has been provided that the communication shall be served electronically although it has not been provided whether such communication has to be through the portal or not. It would be apt to highlight that Rule 142(1) where the terminology has been used, therein DRC-02 cannot be served without the use of common portal. Therefore, the issue gets more complicated wherein the form cannot be served without the use of common portal but the rules do not specifically provide so and at other places they specifically provide so.
| Rule | Particulars |
| 142(1) | The proper officer shall serve, along with the Statement under sub-section (3) of section 73 or sub-section (3) of section 74, a summary thereof electronically in FORM GST DRC-02, |
e) Relevant Provisions providing that the taxpayer shall be informed electronically (whether or not through the portal not specified)–At some places, it has been provided that the taxpayer shall be informed electronically although it has not been provided whether such communication has to be through the portal or not. Although not specifically provided for, such communication is being done through the portal itself.
| Rule | Particulars |
| 138(8) | He shall be informed electronically, if the mobile number or the e-mail is available |
f) Relevant Provisions providing merely that the communication shall be uploaded electronically (whether or not on the portal not specified)-At some places, it has been merely provided that communication shall be uploaded electronically although it has not been provided whether such communication has to be through the portal or not. However, even though not provide for but such form can be uploaded on the common portal. The rules do not specifically provide so and at other places they specifically provide so.
| Rule | Particulars |
| 100(1) | A summary thereof shall be uploaded electronically in FORM GST DRC-07 |
| 142(6) | A summary of the order issued under section 52 or section 62 or section 63 or section 64 or section 73 or section 74 or section 75 or section 76 or section 122 or section 123 or section 124 or section 125 or section 127 or section 129 or section 130 shall be uploaded electronically in FORM GST DRC-07, specifying therein the amount of tax, interest and penalty payable by the person chargeable with tax. |
| 142(7) | A summary of the rectification order or of the withdrawal order shall be uploaded electronically by the proper officer in FORM GST DRC-08. |
g) Relevant Provisions providing that the communication shall be uploaded electronically on the common portal-At some places, it has been specifically provided that that the communication shall be uploaded electronically on the common portal.
| Rule | Particulars |
| 142A | May be uploaded in FORM GST DRC-07A electronically on the common portal for recovery under the Act and the demand of the order shall be posted in Part II of Electronic Liability Register in FORM GST PMT-01 |
Conclusion-It seems that such an important issue of communication to the taxpayer has been left ambiguous. There are many places where the communication or the form has to be through the common portal but the rules do not provide for and keep everybody guessing. At other places the communication might be made both ways i.e. through portal or through email but nothing specific has been provided. At some places, it has been provided that the notice has to be issued electronically and at some places it has been provided that the notice shall be served electronically. Differing Terms and Differing Interpretation. We would be further covering the issue in our second article.
