Serving of notice under various tax laws

In the recent landmark judgement by the Hon'ble Bombay High Court, in the case of SBI Cards & Payments Services Pvt. Ltd. v. Rohidas Jadhav.

Facts of the Case:

  1. The respondent had been evading service of the Notice under Order XXI Rule 22 of the Code of the Civil Procedure, 1908.
  2. He was served by an authorized officer of the Claimant, by sending a PDF and a message to his mobile number as a Whatsapp Message.

Judgement:

It was held by the Hon'ble Bombay High Court that since the WhatsApp indicators showed that not only the message along with the attachment was delivered, but the same was opened by the Respondent, the same would be valid under Order XXI Rule 22, of the Civil Procedure Code, 1908.

In light of the above Judgement of the Bombay High Court apropos serving of the notice under CPC, following are the various provisions under various tax laws apropos serving of notice:


Sr. No.

Statute

Provision

Whether Whatsapp Notice is Eligible Mean of Serving of Notice

1.

The Income Tax Act, 1961

Section 282. Service of notice generally

(1) The service of a notice or summon or requisition or order or any other communication under this Act (hereafter in this section referred to as "communication") may be made by delivering or transmitting a copy thereof, to the person therein named,—

(a) by post or by such courier services as may be approved by the Board; or

(b) in such manner as provided under the Code of Civil Procedure, 1908 (5 of 1908) for the purposes of service of summons; or

(c) in the form of any electronic record as provided in Chapter IV of the Information Technology Act, 2000 (21 of 2000); or

(d) by any other means of transmission of documents as provided by rules made by the Board in this behalf.

(2) The Board may make rules70 providing for the addresses (including the address for electronic mail or electronic mail message) to which the communication referred to in sub-section (1) may be delivered or transmitted to the person therein named.

Explanation. - For the purposes of this section, the expressions "electronic mail" and "electronic mail message" shall have the meanings as assigned to them in Explanation to section 66A of the Information Technology Act, 2000 (21 of 2000).

Following is the relevant extract of the Section 12 of the Information Technology Act, 2000:

'2(t) "electronic record" means data, record or data generated, image or sound stored, received or sent in an electronic form or micro film or computer generated micro fiche;”

'12. Acknowledgment of receipt.

(1) Where the originator has not agreed with the addressee that the acknowledgment of receipt of electronic record be given in a particular form or by a particular method, an acknowledgment may be given by—

(a) any communication by the addressee, automated or otherwise; or

(b) any conduct of the addressee, sufficient to indicate to the originator that the electronic record has been received.

(2) Where the originator has stipulated that the electronic record shall be binding only on receipt of an acknowledgment of such electronic record by him, then unless acknowledgment has been so received, the electronic record shall be deemed to have been never sent by the originator.

(3) Where the originator has not stipulated that the electronic record shall be binding only on receipt of such acknowledgment, and the acknowledgment has not been received by the originator within the time specified or agreed or, if no time has been specified or agreed to within a reasonable time, then the originator may give notice to the addressee stating that no acknowledgment has been received by him and specifying a reasonable time by which the acknowledgment must be received by him and if no

acknowledgment is received within the aforesaid time limit he may after giving notice to the addressee, treat the electronic record as though it has never been sent.”

Section 2(t) and Section 12(1)(b) of the Information Technology Act, 2000 makes it clear that notice or summons served by means of Whatsapp under Section 282 of the Income Tax Act, 1961 shall be valid.

2.

The Customs Act, 1962

Section 153. Modes for service of notice, order, etc.

(1) An order, decision, summons, notice or any other communication under this Act or the rules made thereunder may be served in any of the following modes, namely :

(a) by giving or tendering it directly to the addressee or importer or exporter or his customs broker or his authorized representative including employee, advocate or any other person or to any adult member of his family residing with him;

(b) by a registered post or speed post or courier with acknowledgement due, delivered to the person for whom it is issued or to his authorized representative, if any, at his last known place of business or residence;

(c) by sending it to the e-mail address as provided by the person to whom it is issued, or to the e-mail address available in any official correspondence of such person;

(d) by publishing it in a newspaper widely circulated in the locality in which the person to whom it is issued is last known to have resided or carried on business; or

(e) by affixing it in some conspicuous place at the last known place of business or residence of the person to whom it is issued and if such mode is not practicable for any reason, then, by affixing a copy thereof on the notice board of the office or uploading on the official website, if any.

(2) Every order, decision, 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 or uploaded in the manner provided in sub-section (1).

(3) When such order, decision, 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.

Since, Section 153(1) is limited to e-mail apropos serving of notice vide electronic means, serving of notice vide Whatsapp shall not be a valid mode of service of notice.

3.

The Central Excise Act, 1944

Section 37C. Serving of decisions, orders, summons, etc.

(1) Any decision or order passed or any summons or notices issued under this Act or the rules made thereunder, shall be served, -

(a) by tendering the decision, order, summons or notice, or sending it by registered post with acknowledgment due [or by speed post with proof of delivery or by courier approved by the Central Board of Excise and Customs constituted under the Central Boards of Revenue Act, 1963 (54 of 1963)] to the person for whom it is intended or his authorised agent, if any;

(b) if the decision, order, summons or notice cannot be served in the manner provided in clause (a), by affixing a copy thereof to some conspicuous part of the factory or warehouse or other place of business or usual place of residence of the person for whom such decision, order, summons or notice, as the case may be, is intended;

(c) if the decision, order, summons or notice cannot be served in the manner provided in clauses (a) and (b), by affixing a copy thereof on the notice board of the officer or authority who or which passed such decision or order or issued such summons or notice.

(2) Every decision or order passed or any summons or notice issued under this Act or the rules made thereunder, shall be deemed to have been served on the date on which the decision, order, summons or notice is tendered or delivered by post [or courier referred to in sub-section (1)] or a copy thereof is affixed in the manner provided in sub-section (1).]

Since, Section 37C(1) of the Central Excise Act, 1944 does not include serving of notice vide electronic means; service of notice vide Whatsapp shall not be valid mode of service of notice.

4.

Service Tax

Section 37C of the Central Excise Act, 1944 vide Section 83 of the Finance Act, 1994.

Since, service of notice vide Whatsapp is not a valid mode of service of notice under Section 37C of the Central Excise Act, 1944, the same shall be invalid for issues apropos Service Tax.

5.

The Maharashtra Value Added Tax Act, 2002

NA

There is no provision apropos service of notice in the Maharashtra Value Added Tax Act, 2002

6.

The Central Goods and Services Tax Act, 2017

Section 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 authorized 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 the 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 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.

Since, Section 169 is limited to e-mail apropos serving of notice vide electronic means, serving of notice vide Whatsapp shall not be a valid mode of service of notice.

7.

The Integrated Goods and Services Tax Act, 2017

Section 169 of the Central Goods and Services Tax Act, 2017 vide Section 20 of the Integrated Goods and Services Tax Act, 2017

Since, service of notice vide Whatsapp is not a valid mode of service of notice under Section 169 of the Central Goods and Services Tax Act, 2017, the same shall be invalid for issues apropos IGST


On perusal and analysis of the provisions under various statutes apropos service of notice, it is observed that only the Income Tax Act, 1961 shall have WhatsApp as a valid mode of service of notice. It is pertinent to note that service of notice vide e-mails were included in the Customs Act, 1962 vide the Budget amendments for F.Y. 2018-19. Further, the recently enacted Goods and Service Tax Law also restricts the use of electronic means to e-mail as a valid mode of service.

 

ADV. SANKET S. BORA 
on 01 September 2018
Published in Taxation
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