Orissa High Court
Case Details
ORISSA HIGH COURT : CUTTACK W.P.(C) No.1416 of 2024 In the matter of an Application under Articles 226 and 227 of the Constitution of India, 1950 *** M/s. Arupa Nanda Dhal a proprietorship concern represented by its proprietor Sri Arupa Nanda Dhal Aged about 62 years, Son of Ganannath Dhal At/C/o.: Ganannath Dhal, Bangore Hadagarh, District: Kendujhar 3 758 023 Odisha … -VERSUS- Petitioner 1. Additional Commissioner of State Tax (Appeal), Central Zone-II, Odisha, (At: Cuttack), At: Banijyakar Bhawan, Cantonment Road, Cuttack, Odisha. 2. Additional CT & GST Officer, Keonjhar Circle Jajpur, Odisha. 3. CT & GST Officer, Keonjhar Circle Jajpur, Odisha. 4. Deputy Commissioner of State Tax, CT & GST Circle, Keonjhar, Odisha. 5. Additional Commissioner of CT & GST (IT), At: Commissionerate of CT & GST, Odisha, Banijyakar Bhawan, Cantonment Road, Cuttack, Odisha. 6. Joint Commissioner of CT & GST (Appeal), At: Territorial Range, Jajpur, Jajpur Road, Odisha. W.P.(C) No.1416 of 2024 Page 1 of 45 7. Commissionerate of CT & GST, Odisha Banijyakar Bhawan, Cantonment Road, Cuttack, Odisha. 8. State of Odisha through its Secretary, Finance Department Secretariat Building, Bhubaneswar District: Khordha, Odisha. 9. Central Board of Indirect Taxes and Customs, Department of Revenue, Ministry of Finance At: R. No. 406, 4th Floor, C Wing, HUDCO Vishala Building, Bhikaji Cama Place R.K. Puram New Delhi 3 110 066. … Opposite parties Counsel appeared for the parties: For the petitioner : M/s. Kajal Sahoo, Ronit Ghosh, Subhajeet Sahu, Urmila Sahoo, Romit Panigrahi, Advocates For the opposite party Nos.1 to 7 : Mr. Sunil Mishra Standing Counsel (CT & GST Orgnisation) For the opposite party No.9 : Mr. Avinash Kedia, Junior Standing Counsel, GST, Central Excise & Customs P R E S E N T: THE HONOURABLE ACTING CHIEF JUSTICE DR. B.R. SARANGI AND THE HONOURABLE MR. JUSTICE MURAHARI SRI RAMAN Date of Hearing : 29.01.2024 :: Date of Judgment : 29.01.2024 W.P.(C) No.1416 of 2024 Page 2 of 45 J UDGMENT MURAHARI SRI RAMAN, J.— THE CHALLENGE BY THE PETITIONER: Assailing the Order dated 09.08.2023 of the Additional Commissioner of State Tax (Appeal), Central Zone-II, Odisha at Cuttack passed under Section 107 of the Odisha Goods and Services Tax Act/the Central Goods and Services Tax Act, 2017 (Collectively be called, <GST Act=) rejecting the Appeal bearing No. AD210223003708N filed on 15.02.2023, directed against assessment framed by Additional CT & GST Officer, Kenonjhar Circle, Jajpur exercising power under Section 63 vide Order dated 30.10.2021, the petitioner has invoked extraordinary jurisdiction of this Court under Articles 226 and 227 of the Constitution of India beseeching following relief(s): the aforesaid circumstances, is prayed, <Under therefore, that this Hon9ble Court may be graciously pleased to: it (a) Admit the writ application; (b) Issue rule nisi calling upon the opposite party No. 9 as to why Notification dated 02.11.2023 vide Annexure-7 shall not be held to be discriminatory and in violation of Article 14 of the Constitution of India to the extent it permits only a class of persons to avail the benefit of the said amnesty scheme i.e. W.P.(C) No.1416 of 2024 Page 3 of 45 orders passed under Section 73 and Section 74 of the OGST/CGST Act, 2017 and in violation of natural justice, and therefore, unsustainable in law; (c) If the opposite party do not show cause or shows insufficient cause make the rule absolute; (d) Issue writ of mandamus directing the opposite party No.1 and 5 to restore/revive the appeal dismissed on the ground of delay in view of Notification dated 02.11.2023 in the ends of justice; (e) To pass such order/orders, direction/directions, writ/writs as may be deemed fit and proper in the circumstances of the case; (f) To allow the writ petition; And for this act of kindness the petitioner shall as in duty bound and ever pray.= FACTS AS NARRATED BY THE PETITIONER: 2. The petitioner, a proprietorship concern, registered under the GST Act assigned with GSTIN: 21ACDPD0572H2Z9 with the legal name and trade name <ARUPA NANDA DHAL=, carries on business in execution of works contract. It duly files returns and regularly pays tax. Notwithstanding such registration being granted under the GST Act and valid since 01.07.2017, temporary registration bearing No.212100002050TMP is stated to have been assigned in the name of the petitioner with effect from 01.07.2021, on the ground that the opposite party No.2 has sufficient reason to believe that the petitioner is W.P.(C) No.1416 of 2024 Page 4 of 45 required to be registered under the GST Act and, therefore, the petitioner was registered on a temporary basis. Further reason appended by the opposite party No.2 was that as per data available with WAMIS (Works and Accounts Management Information System) pertaining to period 2019-20 the petitioner received Revenue. 2.1. Assessment Order dated 30.10.2021 under Section 63 of the GST Act in Form GST ASMT-15 has been issued by Additional CT & GST Officer, Keonjhar Circle, Jajpur, (for brevity, <Assessing Authority=) raising a demand to the tune of Rs.25,89,465/- comprising tax and interest for the periods from 1st April, 2019 to 31st March, 2020 directing the petitioner to make payment by 28.01.2022. Questioning legal sanctity and propriety of said Assessment Order, the petitioner preferred appeal on 15.02.2023 under Section 107, which was registered as Appeal No. AD210223003708N and the same got rejected vide Order dated 09.08.2023 of the Additional Commissioner of State Tax (Appeal), Central Zone-II, Odisha at Cuttack (for short, <Appellate Authority=. 2.2. The petitioner has also been adjudicated under Section 74 of the OGST/CGST Act, 2017 vide Order dated 29.03.2023 passed by the Deputy Commissioner of State Tax, CT & GST Circle, Keonjhar for the self-same tax periods, i.e., 2019-20, treating the concern as registered W.P.(C) No.1416 of 2024 Page 5 of 45 person bearing GSTIN: 21ACDPD0572H2Z9, against which appeal being filed on 09.06.2023, provisional acknowledgment bearing No. AD2106230013750 was generated and said appeal has been pending consideration. 2.3. As the matter stood thus, following Notification F. No. CBIC-20001/10/2023-GST [No.53 of 20234 Central Tax], dated 02.11.2023 has been issued by the Ministry of Finance (Department of Revenue) (Central Board of Indirect Taxes and Customs): <S.O. No.4767(E)4 In exercise of the powers conferred by Section 148 of the Central Goods and Services Tax Act, 2017 (12 of 2017) (hereinafter referred to as the said Act), the Central Government, on the recommendations of the Council, hereby notifies taxable persons who could not file an appeal against the order passed by the proper officer on or before the 31st day of March, 2023 under Section 73 or 74 of the said Act (hereinafter referred to as the said order), within the time period specified in sub-section (1) of Section 107 read with sub-section (4) of Section 107 of the said Act, and the taxable persons whose appeal against the said order was rejected solely on the grounds that the said appeal was not filed within the time period specified in Section 107, as the class of persons (hereinafter referred to as the said person) who shall follow the following special procedure for filing appeals in such cases: 2. The said person shall file an appeal against the said order in Form GST APL-01 in accordance with Sub- W.P.(C) No.1416 of 2024 Page 6 of 45 section (1) of Section 107 of the said Act, on or before 31st day of January 2024: Provided that an appeal against the said order filed in accordance with the provisions of Section 107 of the said Act, and pending before the Appellate Authority before the issuance of this notification, shall be deemed to have been filed in accordance with this notification, if it fulfils the condition specified at para 3 below. 3. No appeal shall be filed under this notification, unless the appellant has paid4 (a) in full, such part of the amount of tax, interest, fine, fee and penalty arising from the impugned order, as is admitted by him; and (b) a sum equal to twelve and a half percent. of the remaining amount of tax in dispute arising from the said order, subject to a maximum of twenty-five crore rupees, in relation to which the appeal has been filed, out of which at least twenty percent should have been paid by debiting from the Electronic Cash Ledger. 4. No refund shall be granted on account of this notification till the disposal of the appeal, in respect of any amount paid by the appellant, either on their own or on the directions of any authority (or) court, in excess of the amount specified in para 3 of this notification before the issuance of this notification, for filing an appeal under sub-section (1) of Section 107 of the said Act. 5. No appeal under this notification shall be admissible in respect of a demand not involving tax. W.P.(C) No.1416 of 2024 Page 7 of 45 6. The provisions of Chapter XIII of the Central Goods and Service Tax Rules, 2017 (12 of 2017), shall mutatis mutandis, apply to an appeal filed under this notification.= 2.4. Stemming on said notification the petitioner contended that in order to avail the benefit granted under the aforesaid notification, it tried to restore/revive the appeal dismissed by Order dated 09.08.2023 by the Additional Commissioner of State Tax (Appeal), Central Zone-II, Odisha, at Cuttack, but the portal did not accept with remark that <order number entered is already under appeal or appeal order has been passed. If error persists, please call GST helpdesk or log your issues on Grievance Redressal Portal for GST and quote error number APFOAS1009=. 2.5. The petitioner on 05.12.2023 placed grievance appraising the opposite party No.1 to condone the delay in view of aforesaid notification dated 02.11.2023 on the portal which was assigned with ticket number G- 2023120511677783. The grievance cell acknowledging the said grievance sent an e-mail dated 05.12.2023 whereby it informed that the request is registered and the status is <OPEN= and the petitioner would soon be updated. The grievance cell further updated by e-mail dated 11.12.2023 that the petitioner has to file representation to the office of the Appellate Authority and the said authority would check the eligibility of the W.P.(C) No.1416 of 2024 Page 8 of 45 representation for the availing benefit under the benevolent notification and forward the case to GSTN through State Nodal Officer. Said e-mail also instructed the petitioner to approach the Appellate Authority. 2.6. The petitioner thereafter approached the Appellate Authority and the Joint Commissioner of CT & GST (Appeal), Jajpur permitting payment of pre-deposit, by Letter dated 09.01.2024 transmitted the appeal- application, demand order and order dated 27.01.2023 of this Court in W.P.(C) No. 27502 of 2022, by to the Office of the Additional Commissioner of CT & GST (IT), Commissionerate of CT & GST, Odisha, Cuttack. 2.7. It is contended that in spite of such action being taken by the CT & GST Organisation, without awaiting response from proper quarter, the Appellate Authority has shown undue haste and rejected the Appeal. HEARING OF WRIT PETITION BEFORE THIS COURT AT THE STAGE OF FRESH ADMISSION: 3. This matter was on board under the heading <Fresh
Legal Reasoning
Admission= on 25.01.2024. Smt. Kajal Sahoo, learned Advocate appearing for the petitioner-proprietor insisted that the matter, being urgent in nature, is required to be
Decision
disposed of inasmuch as the benevolence as available in the Notification dated 02.11.2023 would lapse on 31.01.2024 and submitted that while the assessees who suffered with demand as a result of assessment under W.P.(C) No.1416 of 2024 Page 9 of 45 Section 73 and Section 74 of the GST Act are eligible to avail the benefit, but despite the fact that the petitioner is a registered and has been assessed under Section 63 of the GST Act by way of erroneous exercise of jurisiction, such benefit would not be extended to the petitioner. In other words, such notification having ignored the persons who have been assessed under Section 63 ibid., is hit by discriminatory treatment attracting Article 14 of the Constitution of India and the right of the taxable persons like those of the petitioner- assessee could not have been imperiled to approach the Appellate Authority for fresh filing or revival of appeal, which was rejected under Section 107 on the premise of delay. On the said date this Court has posed query on the prayer(s) made by the petitioner: <2. The petitioner, in this writ petition, as per prayer Nos. (b) and (d), has sought following reliefs: (b) Issue rule nisi calling upon the opposite party No.9 as to why notification dated 02.11.2023 vide Annexure-7 shall not be held to be discriminatory and in violation of Article 14 of the Constitution of India to the extent it permits only a class of persons to avail the benefit of the said amnesty scheme i.e. orders passed under Section 73 and Section 74 of the OGST/CGST Act, 2017 and in violation of natural justice and therefore unsustainable in law. W.P.(C) No.1416 of 2024 Page 10 of 45 3. (d) Issue writ of mandamus directing the Opp. Party No.1 & 5 to restore/revive the appeal dismissed on the ground of delay in view of notification dated 02.11.2023 in the ends of justice.= In course of hearing, this Court made a query as to whether the learned counsel appearing for the petitioner will confine her arguments with regard to prayer No.(b) or prayer No.(d), and whether the opposite parties are properly impleaded or not. Learned counsel appearing for the petitioner stated that if the relief is granted today, she will confine her argument to prayer No.(d) and so far as prayer No.(b) is concerned, she sought time for further study. 4. On her request, put up this matter on Monday (29.01.2024).= 3.1. When the matter is taken up today (29.01.2024) for further hearing, Smt. Kajal Sahoo, learned Advocate very fairly stated that the petitioner does not wish to press prayer No.(b), but pressed into service the contentions so far as they related to prayer No.(d). 3.2. Smt. Kajal Sahoo, learned Advocate, made request for disposal of the writ petition at this stage, inasmuch as keeping the matter pending would enure to the benefit of none. 3.3. Sri Sunil Mishra, learned Standing Counsel (CT & GST Organisation) has submitted that he has already received instruction from the authority concerned and W.P.(C) No.1416 of 2024 Page 11 of 45 this being certiorari proceeding, he would stick to the reason assigned by the Appellate Authority. 3.4. Sri Avinash Kedia, learned Junior Standing Counsel, GST, Central Excise and Customs submitted that since prayer No.(b) has not been pressed and the impugned Appellate Order is passed by the Authority of the State Tax, he would sail with the arguments advanced by Sri Sunil Mishra. 3.5. As counsel for the both sides conceded for disposal of the matter, this Court has no hesitation to dispose of the writ petition at the stage of motion hearing. CONTENTIONS AND ARGUMENTS OF THE COUNSEL FOR RESPECTIVE PARTIES: 4. Contending that the petitioner issued with Registration Certificate assigned with GSTIN: 21ACDPD0572H2Z9, which continues to remain valid till date since 01.07.2017, and the authorities of the CT & GST Organisation being well aware of the fact that framing of assessment under Section 63 of the GST Act would be illegal and such exercise of power qua the petitioner would tantamount to lack of jurisdiction, proceeded to assess. The assessment itself is hit by illegal assumption of jurisdictional fact. Therefore, the Appellate Authority by taking into consideration glaring flaw in the very exercise of power under Section 63 by the Assessing Authority ought to have shown indulgence. W.P.(C) No.1416 of 2024 Page 12 of 45 4.1. Advancing argument further Smt. Kajal Sahoo, learned counsel for the petitioner would submit that the Assessing Authority proceeded to determine the tax liability basing on the material available on WAMIS portal by exercise of power under Section 63 as if the petitioner was required to get itself registered. While verifying the veracity of the data so available as uploaded in the portal and finding that the petitioner has received revenue during April, 2019 to March, 2020, before issuing notice under said provision treating the petitioner to be unregistered person, he should have verified the portal further to ascertain the status of the petitioner with respect to registration under the GST Act. 4.2. It has been asserted by Smt. Sahoo that the petitioner has been furnishing returns by self-assessment regularly as required under the statute and disclosed turnovers in such returns by quoting GSTIN: 21ACDPD0572H2Z9, which has been accepted by the portal. 4.3. However, the CT & GST Organisation has created temporary registration bearing No.212100002050TMP vide Form GST REG-12 as prescribed under Rule 16(1) of the Odisha Goods and Services Tax Rules, 2017, on 01.07.2021. Referring to <effective date of registration/temporary ID= as reflected at Column No.11 of said form, which shows <01.07.2021=, Smt. Kajal Sahoo, learned Advocate urged that the Authority W.P.(C) No.1416 of 2024 Page 13 of 45 misdirected himself by taking up assessment under Section 63, as the Authority himself has treated the petitioner as unregistered person with effect from 01.07.2021. This is indicative of the fact that even prior to 01.07.2021 the petitioner has been registered person. 4.4. Placing reliance on Delhi Foot Wear Vrs. Sales Tax Officer, (2015) 77 VST 146 (Ori), wherein dicta laid down in Taylor Vrs. Taylor, (1876) 1 Ch.D. 426; Nazir Ahmed Vrs. King Emperor, AIR 1936 PC 253; Ram Phal Kundu Vrs. Kamal Sharma, (2004) 2 SCC 759; and Indian Banks9 Association Vrs. Devkala Consultancy Service, AIR 2004 SC 2615 = (2004) 11 SCC 1, Gujarat Urja Vikas Nigam Ltd. Vrs. Essar Power Ltd., (2008) 4 SCC 755 has been referred to Smt. Sahoo, learned Advocate submitted that when the statue requires doing certain thing in certain way, the thing mast be done in that way or not at all and other methods or mode of performance are impliedly and necessarily forbidden. She, therefore, vehemently opposed the order of assessment, being framed under Section 63, mechanically without due application of mind. 4.5. She has also submitted with reference to Notification dated 02.11.2023 that the application of the petitioner before the concerned authority as forwarded along with relevant documents to the GSTN through State Nodal W.P.(C) No.1416 of 2024 Page 14 of 45 Officer should have been given due weight and consideration. 4.6. It is submitted by learned counsel that unless appropriate direction be issued, the petitioner would remain remediless, as the Appellate Tribunal has not yet been constituted under Section 109 so as to enable him to file appeal under Section 112 of the GST Act. Under the aforesaid premises, learned counsel has made fervent prayer for remitting the matter to the Appellate Authority for adjudication of issues involved in the matter. 5. In opposing what has been submitted by Smt. Kajal Sahoo, learned Advocate for the petitioner, Sri Sunil Mishra, learned Standing Counsel for the CT & GST Organisation submitted that it is apparent from the impugned Order of the Appellate Authority that while observing that the delay of 380 days in filing the appeal could not be explained by citing sufficient cause despite show cause notices were issued, said Authority committed no error by referring to Section 107(1). 5.1. Strongly opposing the contention of the petitioner, Sri Sunil Mishra, learned Standing Counsel for CT & GST Organisation would contend that the petitioner by participating in the proceeding for assessment under Section 63 of the GST Act, the jurisdictional aspect could have been brought to the notice of the Assessing W.P.(C) No.1416 of 2024 Page 15 of 45 Authority. Having not done so, the petitioner cannot, at this belated stage, be heard to say that lack jurisdiction goes to the root of the matter so as to warrant exercise of extraordinary jurisdiction under Article 226/227 of the Constitution of India. 5.2. Sri Sunil Mishra, learned Standing Counsel for the CT & GST Organisation as also Sri Avinash Kedia, learned Junior Standing Counsel submitted in one voice that no leniency should be shown as the petitioner did not respond to the show cause notices. DISCUSSIONS AND ANALYSIS: 6. Scanning through the record it is transpired that the Appellate Authority has passed the following Order on 09.08.2023 while rejecting the appeal: (herein referred as <This is an appeal preferred by M/s. Aurpa Nanda Dhal, the GSTIN-212100002050TMP appellant) U/s 107 (1) of the 0GST Act,2017 against the demand order passed by the Additional CT & GST Officer, Keonjhar Circle, Jajpur (herein referred as LPO) vide Ref No-ZD2110210128941 dated 30.10.2021. On being aggrieved by the order, the appellant has preferred the present appeal in Form GST APL-01 on dated 15.02.2023. As per Section 107(1) of the CGST/OGST 2017 8Any person aggrieved by any decision order passed under this act by an adjudicating authority may appeal to such appellate authority as may be prescribed within three months from the date on which the said decision or order is communicated to such person9. W.P.(C) No.1416 of 2024 Page 16 of 45 On verification of the appeal application, it is revealed that the appellant has filed appeal application with a delay of 380 days. As such the appellant was issued with show cause notice on dt.25.05.2023 to explain why the appeal application shall not be rejected for such delay filing. But, the appellant failed to respond the said show cause notice. Since the appellant failed to reply to the cause of delay despite reasonable opportunity being given, appeal application made in Form GST APL-01 is hereby rejected for delay filing.= 6.1. It is the submission of the learned counsel for the petitioner, Smt. Kajal Sahoo that the Appellate Authority failed to appreciate the basic fact for the delay in filing the appeal. She has brought to the notice of this Court that the Assessing Authority has framed assessment under Section 74 of the GST Act vide Order dated 29.03.2023 by quoting <GSTIN/ID: 21ACDPD0572H2Z9, treating the petitioner as registered person. Learned Advocate also cited that Registration Certificate issued with No. 21ACDPD0572H2Z9 indicating legal name and trade name as <Arupa Nanda Dhal= shows that date of issue of certificate as <28.07.2018= and the period of validity has been mentioned as <From 01.07.2017 to NA=. Furthermore, an amended Registration Certificate with GSTIN 21ACDPD0572H2Z9 has been issued with <Date of issue of certificate= as <05.04.2021= and <Date of validity= <from 01.07.2017 to Not Applicable=. She has urged that the above fact on record manifest that it was within the knowledge of the CT & GST Organisation W.P.(C) No.1416 of 2024 Page 17 of 45 including the Assessing Authority that the petitioner was a registered person and its registration was valid even on 01.07.2021, i.e., the date of issue of notice <SCN Reference No.ZD2107210006045= for assessment for the periods from April, 2019 to March, 2020, under Section 63 of the GST Act. To rebut such fact apparent on the record, the learned Standing Counsel has no reply. This Court is, therefore, one with the submission made by Smt. Kajal Sahoo, learned counsel for the petitioner. 6.2. Glaring jurisdiction error in the exercise of power under the appropriate provisions compels this Court to hold that the Assessing Authority has invoked power under Section 63 without being conferred with authority to proceed to assess a registered taxable person (petitioner). At this juncture, provisions of Section 63 can be fruitfully referred to, which stand thus: <Assessment of unregistered persons.4 Notwithstanding anything to the contrary contained in Section 73 or Section 74, where a taxable person fails to obtain registration even though liable to do so or whose registration has been cancelled under sub-section (2) of Section 29 but who was liable to pay tax, the proper officer may proceed to assess the tax liability of such taxable person to the best of his judgement for the relevant tax periods and issue an assessment order within a period of five years from the date specified under Section 44 for furnishing of the annual return for the financial year to which the tax not paid relates: W.P.(C) No.1416 of 2024 Page 18 of 45 Provided that no such assessment order shall be passed without giving the person an opportunity of being heard.= 6.3. Glance at provisions contained in Section 63 would reveal that the Assessing Authority is vested with power to invoke jurisdiction under Section 63 inter alia in the event <taxable person fails to obtain registration even though liable to do so=. Evidence available on record is silent about existence of such jurisdictional fact. 6.4. Expanding her argument, Smt. Kajal Sahoo, learned Advocate submitted that temporary registration bearing No. 2121000020SOTMP being allotted on 01.07.2021 by the CT & GST Organisation giving effective date of registration/temporary ID as <01.07.2021=, was not within knowledge of the petitioner and he was unaware of the factum of assessment order being passed under Section 63 and demand raised thereunder. Such fact could come to the notice of the petitioner only when the banker attached bank account. This prompted the petitioner to take shelter of this Court by way of petition being W.P.(C) No.27502 of 2022, which came to be disposed of on 27.01.2023 with the following Order: <1. Learned counsel for the Petitioner points out that the Petitioner is unable to avail the appellate remedy under impugned assessment order since its bank accounts stand frozen and there is no other way by which it can make payment of the pre deposit amount. the GST Act against the W.P.(C) No.1416 of 2024 Page 19 of 45 2. Issue notice. Mr. Sunil Mishra, learned Additional Standing Counsel for Revenue Department accepts notice for the Opposite Parties. 3. Having heard the learned counsel for the parties, the Court directs that limited to the amount required for making the pre deposit, one of the bank accounts of the Petitioner i.e. its account with State Bank of India (SBI) which stands attached in form of a letter dated 15th July, 2022 addressed to the Bank by the Additional CT and GST Officer, Keonjhar (Annexure- 2) shall remain lifted. In other words, the SBI will permit the Petitioner to operate the said bank account only for the purposes of withdrawing the pre-deposit amount and for nothing else. Once that withdrawal is done, the attachment of the said account will continue and will be subject to the further orders that may be passed by the Appellate Authority in accordance with law. 4. In explaining the delay in filing the appeal, it will be open to the Petitioner to cite the pendency of the present petition as the reason and that will be considered in accordance with law by the Appellate Authority. The Court clarifies that it has not expressed any view in the matter. 5. The writ petition is disposed of accordingly. A copy of this order be sent forthwith by the Registry to the Branch Manager, State Bank of India, Andapur, Keonjhar for compliance.= 6.5. In such view of the matter, the Appellate Authority appears to have not taken into consideration the explanation proffered by the petitioner with regard to W.P.(C) No.1416 of 2024 Page 20 of 45 delay in filing the appeal after disposal of W.P.(C) No.27502 of 2022 by this Court in proper perspective. 6.6. This Court is of the considered opinion that the reason assigned by the Appellate Authority is not in accord with material on record. 7. Since the Assessment Order dated 30.10.2021 was passed in exercise of power under Section 63 treating the petitioner to be unregistered person, notwithstanding that it was within his knowledge that the petitioner was a registered person, there is no whisper about the petitioner-taxable person failed to obtain registration even though liable to do so. 7.1. Bare reading of Section 63 makes it abundantly clear that in order to assume jurisdiction to assess a taxable person treating him to be unregistered either of the two following circumstances must exist: i. where a taxable person fails to obtain registration even though liable to do so; or ii. whose registration has been cancelled under sub- section (2) of Section 29 but who was liable to pay tax. 7.2. The very fact that on the date of issue of notice for assessment under Section 63 of the GST Act and also on W.P.(C) No.1416 of 2024 Page 21 of 45 the date of passing of the Assessment Order thereunder, the CT & GST Organisation including the Assessing Authority had the knowledge that the petitioner has been granted Registration Certificate assigned with GSTIN 21ACDPD0572H2Z9 being valid since 01.07.2017, i.e., the date of enforce of the GST Act. Therefore, this Court is of the firm belief that there is glaring mistake in jurisdictional fact. 7.3. In Arun Kumar Vrs. Union of India, (2007) 1 SCC 732 the concept of <jurisdictional fact= has been discussed in the following terms: <74. A <jurisdictional fact= is a fact which must exist before a Court, Tribunal or an Authority assumes jurisdiction over a particular matter. A jurisdictional fact is one on existence or non-existence of which depends jurisdiction of a Court, a Tribunal or an Authority. It is the fact upon which an administrative agency9s power to act depends. If the jurisdictional fact does not exist, the Court, Authority or Officer cannot act. If a Court or Authority wrongly assumes the existence of such fact, the order can be questioned by a writ of certiorari. The underlying principle is that by erroneously assuming existence of such jurisdictional fact, no authority can confer upon itself jurisdiction which it otherwise does not possess. 75. In Halsbury9s Laws of England, it has been stated: 8Where the jurisdiction of a Tribunal is dependent on the existence of a particular state of affairs, that state of affairs may be described as preliminary to, W.P.(C) No.1416 of 2024 Page 22 of 45 or collateral to the merits of, the issue. If, at the inception of an inquiry by an inferior Tribunal, a challenge is made to its jurisdiction, the Tribunal has to make up its mind whether to act or not and can give a ruling on the preliminary or collateral issue; but that ruling is not conclusive.9 76. The existence of jurisdictional fact is thus sine qua non or condition precedent for the exercise of power by a Court of limited jurisdiction.= 7.4. In Carona Ltd. Vrs. Parvathy Swaminathan and Sons (2007) 8 SCC 559, it has been reiterated as follows: <27. Stated simply, the fact or facts upon which the jurisdiction of a Court, a Tribunal or an Authority depends can be said to be a <jurisdictional fact=. If the jurisdictional fact exists, a Court, Tribunal or Authority has jurisdiction to decide other issues. If such fact does not exist, a Court, Tribunal or Authority cannot act. It is also well settled that a Court or a Tribunal cannot wrongly assume existence of jurisdictional fact and proceed to decide a matter. The underlying principle is that by erroneously assuming existence of a jurisdictional fact, a subordinate court or an inferior tribunal cannot confer upon it itself otherwise does not possess. jurisdiction which *** 29. But there is distinction between <jurisdictional fact= and <adjudicatory fact= which cannot be ignored. An <adjudicatory fact= is a <fact in issue= and can be determined by a Court, Tribunal or Authority on <merits=, on the basis of evidence adduced by the parties. It is no doubt true that it is very difficult to W.P.(C) No.1416 of 2024 Page 23 of 45 distinguish <jurisdictional fact= and <fact in issue= or the difference fact=. Nonetheless <adjudicatory between the two cannot be overlooked.= 7.5. Aforesaid dicta of the Hon9ble Supreme Court of India clarifies the position that where an adjudicatory process is involved on merits, then the only remedy open to an assessee is to go through the procedure provided under the enactment. Nonetheless, where there is absence of jurisdictional fact, the Authority cannot wrongly assume existence of jurisdictional fact and proceed to decide a matter and in such eventuality, the order can be questioned by a writ of certiorari. 7.6. By <jurisdiction= it is meant the extent of the power which is conferred upon the Court by its constitution to try a proceeding; its exercise cannot be enlarged because what the learned Judge calls an extraordinary situation <requires= the Court to exercise it. See, Raja Soap Factory Vrs. SP Shantharaj, AIR 1965 SC 1449. Thus, 8jurisdiction9 means authority to decide. Whenever a judicial or quasi judicial Tribunal is empowered or required to enquire into a question of law or fact for the purpose of giving a decision on it, its findings thereon cannot be impeached collaterally or on an application for certiorari but are binding until reversed on appeal. Where a quasi judicial authority has jurisdiction to decide a matter, it does not lose its jurisdiction by coming to a wrong conclusion whether it is wrong in law W.P.(C) No.1416 of 2024 Page 24 of 45 or in fact. The question, whether a Tribunal has jurisdiction depends not on the truth or falsehood of the facts into which it has to enquire, or upon the correctness of its findings on these facts, but upon their nature, and it is determinable 8at the commencement, not at the conclusion of the inquiry9. Thus, a Tribunal empowered to determine claims for compensation for loss of office has jurisdiction to determine all questions of law and fact relating to the measure of compensation and the tenure of the office, and it does not exceed its jurisdiction by determining any of those questions incorrectly but it has no jurisdiction to entertain a claim for reinstatement or damage for wrongful dismissal, and it will exceed its jurisdiction if it makes an order in such terms, for it has no legal power to give any decision whatsoever on those matters. A Tribunal may lack jurisdiction if it is improperly constituted, or if it fails to observe certain essential preliminaries to the inquiry. But it does not exceed its jurisdiction by basing its decision upon an incorrect determination of any question that it is empowered or required to, has jurisdiction to determine. The strength of this theory of jurisdiction lies in its logical consistency. But there are other cases where Parliament when it empowers an inferior Tribunal to enquire into certain facts intend to demarcate two areas of enquiry, the Tribunal9s findings within one area being conclusive and within the other W.P.(C) No.1416 of 2024 Page 25 of 45 area impeachable. The jurisdiction of an inferior Tribunal may depend upon the fulfilment of some condition precedent or upon the existence of some particular fact. Such a fact is collateral to the actual matter which the Tribunal has to try and the determination whether it exists or not is logically prior to the determination of the actual question which the Tribunal has to try. The Tribunal must itself decide as to the collateral fact when, at the inception of an inquiry by a Tribunal of limited jurisdiction, a challenge is made to its jurisdiction, the Tribunal has to make up its mind whether it will act or not, and for that purpose to arrive at some decision on whether it has jurisdiction or not. There may be Tribunals which, by virtue of legislation constituting them, have the power to determine finally the preliminary facts on which the further exercise of their jurisdiction depends; but, subject to that an inferior Tribunal cannot, by a wrong decision with regard to a collateral fact, give itself a jurisdiction which it would not otherwise possess. The characteristic attribute of a judicial act or decision is that it binds, whether it be right or wrong. An error of law or fact committed by a judicial or quasi judicial body cannot, in general, be impeached otherwise than on appeal unless the erroneous determination relates to a matter on which the jurisdiction of that body depends. These principles govern not only the findings of inferior Courts W.P.(C) No.1416 of 2024 Page 26 of 45 stricto sensu but also the findings of administrative bodies which are held to be acting in a judicial capacity. Such bodies are deemed to have been invested with power to err within the limits of their jurisdiction; and provided that they keep within those limits, their decisions must be accepted as valid unless set aside on appeal. Even the doctrine of res judicata has been applied to such decisions. Aforesaid observations may be found in Ujjam Bai Vrs. State of Uttar Pradesh, AIR 1962 SC 1621. 7.7. In Commissioner of Income Tax, Chandigarh Vrs. Pearl Mech. Engg. & Foundry Works (P) Ltd., (2004) 4 SCC 597 following is the observation of the Hon9ble Supreme Court of India: <*** The word <jurisdiction= implies the Court or Tribunal with judicial power to hear and determine a cause, and such Tribunal cannot exist except by authority of law. Jurisdiction always emanates directly and immediately from the law; it is a power which nobody on whom the law has not conferred it can exercise. In other words, <jurisdiction= has reference to the power of the Court or Tribunal over the subject-matter, over the res or property in contest, and to the authority of the Court to render the judgment or decree it assumes to make. ***= 7.8. This Court in B.P. Enterprises Vrs. State of Odisha, (2008) 18 VST 405 (Ori) made the following observation with regard to irregular or erroneous or illegal orders: W.P.(C) No.1416 of 2024 Page 27 of 45 <In Deepak Agro Foods Vrs. State of Rajasthan, (2008) 16 VST 454 (SC), a similar issue has been examined by the apex court and it has been held that assessment orders are not in the nature of judicial proceeding. Irregular assessment orders are curable but assessment orders passed without jurisdiction are null and void. The Supreme Court observed as under: 811. All irregular or erroneous or even illegal orders cannot be held to be null and void, as there is a fine distinction between orders which are null and void and orders which are irregular, wrong or illegal. Where an authority makes an order which lacks inherent jurisdiction, such an order would be without jurisdiction, null and void ab initio, as the defect of jurisdiction of such authority goes to the root of the matter and strikes at his very authority to pass any order and such a defect cannot be cured even by consent of the parties. *** However, exercise of jurisdiction in a wrongful manner cannot result in a nullity4 it is an illegality capable of being cured in duly constituted legal proceedings. Proceedings for assessment under a fiscal statute are not in the nature of judicial proceedings, like proceedings in a suit, inasmuch as the Assessing Officer does not adjudicate on a lis between an assessee and the State, and, therefore, the law on the issue laid down under the civil law may not stricto sensu apply to assessment proceedings. *** 18. Therefore, the law emerges that in case the authority is found to lack inherent/patent jurisdiction, the W.P.(C) No.1416 of 2024 Page 28 of 45 order becomes a nullity. However, in case there has been any in following the procedure prescribed by law, the order remains merely illegal and would be curable. illegality *** 24. Before parting with the case, we would like to point out that everyday we are facing the assessment orders, in respect of the TIN dealers, passed by the assessing authority, circle, though such assessment orders are in violation of the statutory provisions as can be passed only by assessing authority, range. Even if the dealer does not take any objection in this regard, it becomes the duty of the assessing authority himself to keep the jurisdictional issue in mind.= 7.9. Central Potteries Ltd. Vrs. State of Maharashtra, (1962) 13 STC 472 (SC) = (1963) 1 SCR 166 = AIR 1966 SC 932 laid down that, jurisdiction, and irregular assumption of <In this connection it should be remembered that there is a fundamental distinction between want of jurisdiction that and whereas an order passed by an authority with respect to a matter over which it has no jurisdiction is a nullity and is open to collateral attack, an order passed by an authority which has jurisdiction over the matter, but has assumed it otherwise than in the mode prescribed by law, is not a nullity. It may be liable to be questioned in those very proceedings, but subject to that it is good, and not open to collateral attack.= W.P.(C) No.1416 of 2024 Page 29 of 45 7.10. Lack of jurisdiction strikes at the very root of the action/act and want of jurisdiction might vitiate proceedings rendering the orders passed and exercise thereof, a nullity. But a mere error in exercise of jurisdiction would not vitiate the legality and validity of the proceedings and the said order was valid unless set aside in the manner known to law by laying a challenge, subject to law of limitation. Vide, Budhia Swain Vrs. Gopinath Dev, (1999) 4 SCC 396 = (1999) 2 SCR 1189. 7.11. Aforesaid discussion takes this Court to decide that in the matter at hand the Assessing Authority having verified the revenue receipts in the hands of the petitioner from the data available on WAMIS portal, ignored to find out his status with regard to registration and returns claimed to have been furnished. There is nothing on record to suggest that the petitioner-taxable person failed to obtain registration even though liable to do so, so as to assume jurisdiction to proceed with the assessment under 63 of the GST Act. 7.12. As it appears the observation of this Court in B.P. Enterprises Vrs. State of Odisha, (2008) 18 VST 405, that <it becomes the duty of the Assessing Authority himself to keep the jurisdictional issue in mind= has not gone down well with the CT & GST Organisation. The Assessing Authority has taken no care to verify his own jurisdiction to exercise power under Section 63 to W.P.(C) No.1416 of 2024 Page 30 of 45 proceed with an assessment of taxable person who has already been registered. It is not in dispute that the Assessing Authority while accessing data available in WAMIS, could also verify the status of registration or otherwise of the petitioner and returns furnished by the petitioner from its web-portal. Having not done so, it seems the Assessing Authority has proceeded to conduct fishing and roving enquiry. In absence of tangible material on record regarding failure of the petitioner <to obtain registration even though liable to do so=, such erroneous exercise of power under Section 63 goes to the root of the matter and warrants issue of writ of certiorari in view of ratio of Arun Kumar Vrs. Union of India, (2007) 1 SCC 732 and Carona Ltd. Vrs. Parvathy Swaminathan and Sons, (2007) 8 SCC 559. 8. Be that as it may, in the present matter, it fell for consideration whether the Appellate Authority could have condoned the delay in filing appeal, particularly when he has cited provision of sub-section (1) of Section 107 of the GST Act. The fact asserted by the petitioner is that it is only when the bank intimated regarding attachment of account for the purpose of recovery of demand raised in assessment framed under Section 63, the petitioner came to know about such demand raised as if he remained unregistered person. The petitioner immediately questioned such an action before this Court in W.P.(C) No.27502 of 2022. The petitioner filed appeal W.P.(C) No.1416 of 2024 Page 31 of 45 pursuant to direction of this Court in said writ petition vide Order dated 27.01.2023. Therefore, the Appellate Authority committed error of record. 9. Another pertinent factor which this Court has been impressed upon is Notification dated 02.11.2023, which protected those assessees, whose appeals directed against the Assessment Order passed under Section 73 or Section 74 prior to 31.03.2023, were rejected on the ground of limitation. 9.1. It has been apprised at the Bar that considering the plight of assessees with regard to cut-off date, the Jharkhand High Court in Prince Sanitation Gandhi Path Vrs. State of Bihar, Civil Writ Jurisdiction Case No.17202 of 2023, vide Judgment dated 07.12.2023 held as follows: <4. The difficulty insofar as its application to the petitioner9s case is the date on which the proper officer, being the Assessing Officer, having passed the order which was challenged in appeal, on 27.04.2023. The notification which was brought out on 02.11.2023 only permits appeals to be filed from orders passed by the proper officer on or before 31.03.2023, in cases in which it was not instituted in time or within the time permitted for a delayed appeal, and in cases where such delayed appeals beyond the stipulation in 107(4) has been rejected. The petitioner would not squarely fall under the notification. W.P.(C) No.1416 of 2024 Page 32 of 45 5. We do not see any rationale for the date fixed of 31.03.2023, as a cut-off date. We notice that the notification itself was brought out on 02.11.2023 and in such circumstances any order passed in at least three months before that date; the time provided for filing an appeal, ought to have been considered for such beneficial treatment.= 9.2. In the same analogy if the present case is examined, this Court finds that uncontroverted fact remains that the petitioner has been granted Registration Certificate, which is valid seamlessly with effect from 01.07.2017 and the Assessing Authority having undertaken assessment under Section 74 of the GST Act was well aware of the fact that the petitioner has been granted registration under the GST Act. Therefore, there was no scope for exercise of power under Section 63 of the GST Act. Such being erroneous exercise of power, this Court may wish to quote the following from N. Mani Vrs. Sangeetha Theatre, (2004) 12 SCC 278: <It is well settled that if an authority has a power under the law merely because while exercising that power the source of power is not specifically referred to or a reference is made to a wrong provision of law, that by itself does not vitiate the exercise of power so long as the power does exist and can be traced to a source available in law.= 9.3. Therefore, treating the exercise of power under Section 63 of the GST Act as erroneous on the part of the Assessing Authority it is but necessary to observe that W.P.(C) No.1416 of 2024 Page 33 of 45 the Appellate Authority is required now to decide the appeal on merits. 10. It needs to be mentioned that Section 63 of the GST Act is couched in the negative by use of the words <no such assessment order shall be passed without giving the person an opportunity of being heard=. 10.1. The notice for hearing is, therefore, mandatory requirement to exercise power under Section 63 in order to comply with the principles of natural justice. It is reflected from the Order dated 30.10.2021 that the same was prepared on account of Temporary Registration Number, notwithstanding the fact that the petitioner has been registered since 01.07.2017. Therefore, it is submitted by Smt. Kajal Sahoo, learned Advocate that the Assessing Authority claiming to have issued notice <to explain the reasons for continuing to conduct business as an unregistered person despite being liable to be registered under the Act= obviously means that the notice was issued in the Temporary Registration Number bearing ID: 212100002050TMP which fact was never made known to the petitioner, but for the intimation of attachment notice by the banker. There no reply or objection to this whatsoever nor any evidence is placed by the opponent to show that such notice was ever served on the petitioner. However, Sri Sunil Mishra, learned Standing Counsel for the CT & GST W.P.(C) No.1416 of 2024 Page 34 of 45 Organisation made strenuous attempt to persuade this Court that since there was no response by the assessee with respect to contents of notice issued, which fact is clearly stated in the Assessment Order dated 30.10.2021, the assessment proceeding under Section 63 cannot be held to be vitiated. 10.2. Scrutiny of Assessment Order dated 30.10.2021 would show that it is the claim of Assessing Authority that <the notice referred to above was issued to you to explain the reason=. However, there is no indication as to whether such notice had ever been served on the proper person to whom it is addressed to. 10.3. In sum and substance of the leg of argument of the Standing Counsel was that once it was established that the notice under Section 63 was 8issued9, then such 8issue9 of notice should be considered as 8service9 of notice. Such a stance deserves to be repelled for the reason that proviso to Section 63 envisages <opportunity of being heard=. This Court, thus, observes that notice under Section 63 should not only be <issued=, but also <served= and in the absence of such a valid service, the assessment is vitiated. In view of decision rendered in R. K. Upadhyaya, ITO Vrs. Shanabhai P. Patel, (1987) 166 ITR 163 (SC) there remains no ambiguity that 8issue of notice9 cannot be substituted with 8service of notice9. The position is clarified in the said Judgment to the effect W.P.(C) No.1416 of 2024 Page 35 of 45 that <once a notice is issued within the period of limitation, jurisdiction becomes vested in the Income-tax Officer to proceed to reassess. The mandate of Section 148(1) is that reassessment shall not be made until there has been service.= 10.4. Provisions of Section 169 of the GST Act which deals with service of notice would make the position as follows: <169. Service of notice in certain circumstances.4 (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:4 (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 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 authorised representative, if any, at his last known place of business or residence; or W.P.(C) No.1416 of 2024 Page 36 of 45 (c) by sending a communication to his e-mail address provided at of registration or as amended from time to time; or time the (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.= 10.5. The Madras High Court in the case of Pushpam Reality Vrs. State Tax Officer, W.P. No. 27651 of 2021, etc., vide W.P.(C) No.1416 of 2024 Page 37 of 45 Order dated 04.02.2022 taking cognizance of said Section 169, observed as follows: <11. Though Section 169 of the respective enactments allows the authorities to communicate any decision, order, summons, notice or other communication under this Act by any one of the methods specified, unless the proper conformation that notices and impugned orders which were uploaded in the web portal of the State Government in tngst.cid.tn.gov.in are auto populated, it cannot be said that there is a sufficient compliances of the aforesaid Section. 12. GST Act was implemented in the year 2017 with effect from 01.07.2017. The web portal maintained by GST has faced problems on several occasions and steps were taken for correcting the technical glitches. Even as on date, there are problems arising out of inter communication between the State GST and Central GST and the web portal which has to be resolved. 13. The respondents can therefore continue the service of notice through registered post or speed post or courier with acknowledgment to the petitioners at their last known place of business or residence and upload the same in the web portal. Till all problems are resolved on the technical side, the authority may simultaneously serve the notice of assessment and communications under the Act and Rules both through registered post or speed post or courier with acknowledgment as contemplated Section is 169(1)(b) of the Act and through web portal. 14. Once all the practice of sending physical copy through registered technical problems are resolved, W.P.(C) No.1416 of 2024 Page 38 of 45 post or speed post or courier with acknowledgment may be dispensed with.= 10.6. Section 27 of the General Clauses Act, 1897, deals with the meaning of 8service by post9. It states that: 8Where any (Central Act) or Regulation made after the commencement of this Act authorizes of requires any document to be served by post, where the expression <serve= or either of the expressions <give= or <send= or any other expression in used, then, unless a different intention appears, the service shall be deemed to be effected by properly addressing prepaying and posting by registered post, a letter containing the document, and unless the contrary is proved, to have been effected at the time at which the letter would be delivered in the ordinary course of post9. It is manifest from the mandate of section 282 of the Act read with section 27 of the General Clauses Act that these provisions deal with the service of notice and more particularly the service of notice by post. Section 27 provides that service by post shall be deemed to be effected by properly addressing, pre-paying and posting by registered post. It means that when a letter containing the document is properly addressed, pre-paid and posted by a registered post, it will be considered as a valid service. 10.7. There is a specific mention of the words 8unless the contrary is proved9. It means that the presumption of valid service on properly addressing, pre-paying and W.P.(C) No.1416 of 2024 Page 39 of 45 posting by registered post is not irrebuttable. It can be rebutted if the contrary is proved. 10.8. On the contrary in the present case except saying that the notice was <issued=, there was nothing on record to demonstrate that the notice was, in fact, served on the petitioner. Rather, the petitioner could be able to demonstrate that notwithstanding its being registered, the Assessing Authority exercised erroneous jurisdiction. Under such circumstances, there can be no presumption of valid service of notice in terms of the above provisions. 10.9. In Balaji Tobacco Store Vrs. Sales Tax Officer, (2015) 81 VST 170 (Ori) reference was made to Institute of Chartered Accountants of India Vrs. Price Waterhouse, (1997) 90 Comp Cas 113 (SC) = (1997) 6 SCC 312, wherein it has been held as under: <It is settled rule of interpretation that all the provisions would be read together harmoniously so as to give effect to all the provisions as a consistent whole rendering no part of the provision as surplusage. Otherwise, by process of interpretation, a part of the provision or a clause would be rendered otiose. ***9 Law is also well-settled that when the statute requires doing certain thing in certain way, the thing must be done in that way or not at all. Other methods or modes of performance are impliedly and necessarily forbidden. The aforesaid settled legal proposition is based on a legal maxim 8Expressio unius est exclusion alteris9, meaning thereby that if a statute provides for a thing to be done in W.P.(C) No.1416 of 2024 Page 40 of 45 a particular manner, then it has to be done in that manner and in no other manner and following other course is not permissible.= 10.10. As is apparent from the Assessment Order impugned herein it is fact that the notice and said order was communicated in Temporary Registration Number without making the same made known to the petitioner. Therefore, there was sufficient reason for the petitioner not to have participated in the proceeding initiated under Section 63, which is illegal assumption of jurisdiction in view of the fact that it was within the knowledge of the Assessing Authority that the petitioner has valid registration. Reading of provisions of Section 63 and Section 169 of the GST Act in juxtaposition, it is manifest that sending the communication or notice in Temporary Registration Number is not the requirement. 10.11. There being sufficient plausible reason ascribed by the petitioner for approaching the Appellate Authority by way of filing appeal under Section 107 and the Appellate Authority should not have been pedantic in his approach but to have shown pragmatic approach by taking into consideration the peculiar fact-situation. 10.12. The precept, as stated in Distributors (Baroda) P. Ltd. Vrs. Union of India, (1985) 155 ITR 120 (SC) = (1986) 1 SCC 43 , is apt to be quoted hereunder: W.P.(C) No.1416 of 2024 Page 41 of 45 <We have given our most anxious consideration to this question, particularly since one of us, namely, P.N. Bhagwati, J. was a party to the decision in Cloth Traders9 case. But having regard to the various considerations to which we shall advert in detail when we examine the arguments advanced on behalf of the parties, we are compelled to reach the conclusion that Cloth Traders9 case, (1979) 3 SCC 538 must be regarded as wrongly decided. The view taken in that case in regard to the construction of Section 80M must be held to be erroneous and it must be corrected. To perpetuate an error is no heroism. To rectify it is the compulsion of the judicial conscience. In this, we derive comfort and strength from the wise and inspiring words of Justice Bronson in Pierce Vrs. Delameter (A.M.Y. at page 18): 8a judge ought to be wise enough to know that he is fallible and, therefore, ever ready to learn: great and honest enough to discard all mere pride of opinion and follows truth wherever it may lead: and courageous enough to acknowledge his errors9.= CONCLUSION & DECISION: 11. There is patent error of jurisdictional fact as revealed from the records available. The Registration Certificate (Original as also Amended) granted with effect from 01.07.2017 much prior to issue of notice under Section 63 and the Assessment Order dated 29.03.2023 passed under Section 74 of the GST Act evince that the Assessing Authority was well aware of the fact that the petitioner does not fall within the scope of the expression <where a taxable person fails to obtain registration even though liable to do so= employed in Section 63, so as to Page 42 of 45 W.P.(C) No.1416 of 2024 invoke power to proceed with the assessment thereunder. This apart, it is not denied that the Assessing Authority is not authorized or competent to verify the status of the petitioner. 12. In view of settled legal position as set forth by way of enunciation of different Courts referred to supra, this Court is inclined to issue writ of certiorari. 12.1. In Trimbak Gangadhar Telang Vrs. Ramchandra Ganesh