Mr.Justice Krishnan Ramasamy W. P.No.5539 of 2025 and W.M.P.Nos.6103 & 6104 of 2025 Tvl. Sri Balaji Traders
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED 24.02.2025
Coram
The Honourable Mr.Justice Krishnan Ramasamy
W. P.No.5539 of 2025 and
W.M.P.Nos.6103 & 6104 of 2025
Tvl. Sri Balaji Traders
rep. by its Proprietor N.Govindarajalu
…Petitioner
Vs.
The Deputy Commercial Tax Officer
Chidambaram -I
Cuddalore, Tamil Nadu. …Respondent
Prayer
Writ Petition filed under Article 226 of the Constitution of India praying for the issuance of a Writ of Certiorarified Mandamus to call for records of the order of assessment in DRC-07 bearing Ref No.ZD3308242227973 in GSTIN/ID : 33AAGPG2292Q1ZF/2019-20 dated 24.08.2024 passed by the respondent and to quash the same and further, to direct the respondent to lift the bank attachment notice in Form DRC-13 dated 05.02.2025, issued by the respondent on the petitioner’s banker.
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For Petitioner : Mr.R.Ganesh Kanna
For Respondent : Ms..Amirta Poonkodi Dinakaran
Government Advocate (T)
Order
Heard Mr.R.Ganesh Kanna, learned counsel appearing for the petitioner and Ms..Amirta Poonkodi Dinakaran learned Government Advocate (T) who takes notice on behalf of the respondent. With consent, the main Writ Petition is taken up for final disposal at the stage of admission
itself.
2. The challenge in this Writ Petition is to the order of assessment passed by the respondent in DRC-07 dated 24.08.2024 and to quash the same and further, to direct the respondent to lift the bank attachment notice issued in Form DRC-13 dated 05.02.2025 on the petitioner’s banker.
3. Mr.R.Ganesh Kanna, learned counsel for the petitioner would submit that the respondent issued a show cause notice in Form DRC-01 dated 22.05.2024, which has been uploaded in the GST Portal under the
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Column ”View Additional Notices/Orders” instead of usual column ”View Notices/Orders”, and hence, the said notice was unnoticed by the petitioner; that thereafter, the respondent also sent reminders dated 26.06.2024, 19.07.2024 and 19.08.2024, and since the same have also been uploaded in the GST Portal under the said different Column, those notices have also been unnoticed by the petitioner, however, the respondent passed the impugned order by stating that the petitioner failed to file reply nor appeared before the respondent for the personal hearing, hence, the proposals contained in the show cause notice are confirmed.
3.1 The learned counsel for the petitioner would submit that the reasons for non responsive to the show cause notice and reminders is purely owing to the fact that the petitioner has no knowledge of the same, as they were uploaded in the GST Portal under the unusual column, i.e. ‘View Additional Notice/Orders’, and only when the petitioner received an intimation as regards the attachment of their bank account, the petitioner
immediately verified the online portal, and found that all notices/communications, which culminated in the impugned order have
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been merely uploaded in the GST Portal.
3.2 The bone of contention of the learned counsel for the petitioner is that the petitioner is an illiterate person and is not well accustomed with operation of the computer system so as to view On-line services through GST Portal independently without anyone’s help. Therefore, the petitioner could neither file reply nor appear before the respondent for the personal hearing, however, the respondent, without even hearing the petitioner, passed the impugned order and also proceeded to initiate recovery proceedings by attaching their bank account.
3.3 Therefore, the learned counsel for the petitioner assailed the impugned order by mainly contending that the impugned order is nothing but an ex parte order, as the petitioner has not been heard before passing the the same and insofar as the notices/communications, which have been merely uploaded to the GST Dashboard under ”View Additional Notices and Orders” tabs in the GST Portal are concerned, the same can no longer be deemed to be a sufficient service.
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3.4 The learned counsel further submitted that when the petitioner failed to respond to any of the notices sent by the respondent through online portal, the respondent ought to have chosen to send notice through physical mode of service and in support of such contention, the learned counsel draws the attention of the Court to the provisions contained in Section 169 of the Central Goods and Service Tax Act, which prescribes any other modes of service, particularly (b) of the said Act, prescribes mode of service by RPAD and the respondent, instead of changing the mode of service, has been mechanically issuing notice after notice, which would serve no useful purpose. Therefore, it is contended that unless and until the petitioner has received notice in person by RPAD, the service effected by the respondent cannot be deemed to be a sufficient service.
3.5 It is the further grievance of the petitioner that had any of the notices, which culminated in the impugned order has been served on the petitioner through physical mode of service, obviously, the petitioner would have been in a position to putforth their submission/contention by way of
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filing an effective reply/objection and the respondent, on being convinced with the same, would have either dropped the proceedings or else would have provided the reasons for rejection, which would have paved a way for the petitioner to go on Appeal challenging such rejection, however, since such an opportunity was deprived to the petitioner, the petitioner is now forced to pay tax/interest/penalty.
3.6 Finally, it is averred by the learned counsel for the petitioner that subsequent to the impugned order passed by the respondent, the petitioner has voluntarily paid 80% of the disputed tax, therefore, prays this Court to set aside the impugned order and remand the matter for fresh consideration, so that the petitioner would be able to putforth their case by way of filing proper and effective reply.
4. Per contra, Ms..Amirta Poonkodi Dinakaran, the learned Government Advocate (T) would submit that initially, the respondent issued a show cause notice dated 22.05.2024 calling upon the petitioner to pay the tax in respect of mismatch liability arising out of the comparison of GSTR
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3B and GSTR 1 returns filed by the petitioner for the assessment year 201920; that since the petitioner failed to respond to the said notice, the respondent sent three reminders dated 26.06.2024, 19.07.2024 and 19.08.2024, despite the same, the petitioner failed to file reply and appear for the personal hearing, hence, the respondent proceeded to confirm the proposals contained in the show cause notice and passed the impugned order. Therefore, it is contended that the petitioner has been given ample opportunities to putforth their case and it was the petitioner, who failed to utilize any of such opportunities, hence, it is not open to the petitioner to contend that the impugned order suffers from violation of principles of natural justice.
4.1 Further, it is contended by the learned Government Advocate (T) that the petitioner, being a Proprietor of the Firm, registered under the provisions of the GST Act, ought to have engaged a GST Practitioner for filing returns, as the respondent-Department is often giving instructions to the GST Practitioners to view the On-line portal, particularly, they have been instructed to view the notices, which are being uploaded in the ‘View
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Additional Notices’ column, and in the present case, though the petitioner stated that he is an illiterate and has no knowledge of the computer system, certainly, the petitioner ought to have engaged a Consultant to view on-line services in the GST Portal then and there and in the absence of doing so, the petitioner cannot take advantage of their ignorance, as ignorantia juris non excusat (ignorance of law is not an execuse) nor petitioner seek refuge under the pretext that they do not have computer knowledge to view the Online service, since technologies are getting improved and the petitioner has to get along with the same.
4.2 The learned Government Advocate further submitted that insofar as the mode of service adopted by the respondent-Department, viz. On-line Portal is concerned, the same cannot be stated to be insufficient service, inasmuch as, most of the taxpayers registered under the provisions of the GST Act are engaging the GST practitioners to act on their behalf, and they are finding only the On-line Portal services as their easy access for sending their communication in the form of reply/objection on behalf of the assessees, therefore, the petitioner and cannot expect for the traditional way
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of sending notice to them via. RPAD; and in fact Section 169 d) expressly prescribed On-line mode of service as the effective service, and only in cases, where, the assessees have not engaged any other Consultant for filing their returns, |the respondent-Department is adopting the mode of sending service through e-mail to the address provided at the time of registration, and in the event of the same getting bounced back, they are sending by a messenger. Therefore, it is contended that in terms of Section 169 of the Act, the mode of service adopted by the respondent can longer be deemed to be insufficient service.
4.3 Therefore, the learned Government Advocate contended that in terms of the provisions contained in Section 169 (d), the respondent has complied with the service and the petitioner has been given sufficient opportunities and time as well for filing their reply, despite the same, as the petitioner has failed to come forward with any reply nor appeared for the personal hearing, hence, the respondent confirmed the proposals contained in the show cause notice and passed the impugned order; that, therefore, it is not open to the petitioner to contend that the impugned order is an ex parte
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order, as it is the petitioner, who failed to utilize all the opportunities given to them, they cannot come out with a false plea that notices have been uploaded in the different column, they are unaware of the assessment proceedings, nor they seek refuge under the pretext that as they are not served physically, they are unaware of the impugned order.
4.4 However, the learned Government Advocate fairly submits that in the present case, since it is stated by the learned counsel for the petitioner that the petitioner has voluntarily deposited 80% of the disputed tax, in the event, this Court is inclined to set aside the impugned order and remand the matter back for re-consideration, subject to the verification of the statement made by the petitioner as regards payment of 80% of the disputed tax, the matter would be re-considered, and hence, she sought for appropriate orders in this regard, which the Court may deem fit and proper.
5. I have consciously considered the rival submission and perused the materials on record.
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6. In the case on hand, a show cause notice in Form DRC-01 dated
22.05.2024 has been served on the petitioner through GST Portal, under the
”View Additional Notices/Orders column. According to the learned counsel for the petitioner, since the show cause notice and all other allied communications, viz. three reminders, which culminated in the impugned order have been uploaded in the different columns, i.e. ”View Additional Notices/Orders’ column, instead of uploading the same under usual column, i.e ‘View Notice/Orders column, the same were unnoticed by the petitioner, and hence, the petitioner could neither file reply nor appear before the respondent for the personal hearing, however, the impugned order came to be passed against the petitioner, without even affording an opportunity of hearing to the petitioner, which, according to the petitioner is an ex parte as the same suffers from in violation of principles of natural justice. Whereas, such contention has been vehemently opposed by the learned Government Advocate for the respondent-GST Department by contending that in terms of Section 169 of the Act, the notice have been duly served on the petitioner requiring their reply and appearance by granting sufficient time, however,
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since the petitioner failed to file reply nor appeared for the personal hearing, the impugned order came to be passed, which cannot be termed to be an ex parte order, as the respondent-Department apart from issuing show cause notice, has caused three reminders to bring to the notice of the petitioner about the show cause notice, and hence, the petitioner cannot take advantage of their ignorance, as ignorantia juris non excusat.
7. Thus, the issue that arise for consideration in this Writ Petition is as to whether the impugned order is an ex pare order and the mode of service adopted by the respondent is an effective service in terms of the provisions of Section 169 of the GST Act?
7.1 The issue that has been raised in the present Writ Petition often remains to be a recurrent issues, as in most of the assessees’ case, notice were sent by the respondent-GST Department only by way of uploading the same in the GST Portal and not being served in person.
7.2 Therefore, this Court endeavours to resolve the said issue, as the
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answer to the said issue would not only act as an elixir to the regime of the GST Department and would also put a spoke for the assessees from approaching this Court in getting blanket orders pleading ignorance of notice sent to them regarding the assessment proceedings on the ground that they were not served in person and were merely uploaded in the GST Portal.
7.3 In the present case, it is the main grievance of the petitioner that since the notices were uploaded by the respondent-Department in the different column, ”View Additional Notices/Orders, instead of the uploading the same in the usual column, i.e.’View Notices/Orders, the petitioner has failed to view the same, as the petitioner only get used to view the Portal under the usual column, i.e. ‘View Notices/Orders. Thus, it is clear that the new modus operandi adopted by the respondent-Department, i.e. sending notice through On-line Portal is the seat of all problems for the assessees, which opened the floodgate for all the assessees to file litigations before this Court seeing necessary relief.
8. According to the petitioner, the mode of service effected by the
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respondent, viz. Notice through On-line Portal, that too, not under the usual column, ‘View Notice/Orders but under the different column, ”View Additional Notice/Orders cannot be deemed to be a sufficient service, as most of the assessees are not aware of the fact that the notices regarding assessment proceedings are being uploaded in the said column, via. On-line Portal.
8.1 However, according to the learned Government Advocate for the respondent, Section 169 of the GST Act, expressly prescribes such mode of service as well for sending notice regarding assessment proceedings.
9. This Court, in order to resolve the aforesaid issue feels that it would be apposite to refer to Section 169 of the Act, wherein, the mode of service to be adopted by the respondent has been specified and it is reproduced as under:-
” 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:-
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(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 acknowledgment 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
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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.”
9.1 On a reading of the above provision, it is explicitly clear that service of notice should be first by way of initial modes, viz., by giving/tendering it directly or by a messenger including a courier; by registered post or speed post or courier; and by sending a communication to assessee’s e-mail address (169.1(a) to (c)) and thereafter, by making it
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available on the common portal; by publication in a newspaper (169.1(d) & (e). If none of these modes is practicable, by affixing it in some conspicuous place at assessee’s last known place of business or residence (169.1(f). The provision further provides that every decision, summons, notice or any communication shall be deemed to have been served when it is tendered, or published, or a copy thereof is affixed, and also when the same is sent by registered post or speed post.
9.2 No doubt, Section 169 is a step to modernize the tax administration in the Country by taking advantage of available technology, which provides service of notices/orders by way of uploading the same in common GST portal and communicating through e-mail, but at the same time, it is pertinent to note that, unless, the assessee possesses the technical knowledge, he may not be in a position to have access of GST portal or to go through his e-mail.
9.3 Further, many of the assessees are entirely dependent upon their authorized persons/auditors/consultants, who are equipped with technical
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knowledge and used to get their assistance in uploading their returns and to respond the notices/communications that were emailed to them to their registered email ids in the Web-Portal. On certain occasions, when the assessees are unable to get the assistance of the Consultants/Auditors, they may not be in a position to access their web portal and go through their emails, which results in failure to respond to the notice sent to them In such circumstances, when there was no response from the assessees end despite uploading the notices on the common web portal and sending to his email, immediately, it is incumbent on the part of the Taxing Authority to choose an effective mode of service from and out of the modes that were specifically prescribed under Section 169 (1) instead of uploading the notices on the common portal again and again. If the Authority resorts to adopt the mode of service of notice by giving or tendering it directly or by registered post with acknowledgment due, there may not be any complaint from the assessee that no opportunity is provided to them, and further, this mode satisfies the principles of natural justice.
9.4 Thus, it is the grievance of the assessees that the new mode of
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service adopted by the respondent, via. On-line portal is not an effective mode of service. Though according to the learned Government Advocate, most of GST Practitioner are finding the On-line services as effective mode for their communication, as they could have easy access only through online service, it is not in all the cases, where, the assessees are engaging such Practitioner, as there are other assessees, who are illiterate and common plebeians and though they are engaging Consultants, Consultants are finding difficult to view the on-line service then and there, as they are not only the Consultant acting on behalf of the particular assessee alone, but for other assessees, therefore, they would be obviously pre-occupied with certain commitments and they cannot be expected to view the on-line portal ever and anon to find out the assessee on whom, the respondent-Department is hanging on the Damocles sword by thirsting the tax/interest/penalty and would come to their rescue by filing reply with documents.
9.5 Further, in the case on hand, admittedly, the show cause notice sent by the respondent via. Online Portal has not been noticed by the petitioner and the reasons assigned by the petitioner for not having noticed
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the said notice is that, he is an illiterate and has no computer knowledge and hence, he is not well-accustomed with the GST operation system and further, notice has been uploaded in the different column, viz., ”View Additional Notice/Orders, which not only the petitioner-assessee but most of the assessees, including the Consultants engaged by them are not aware that the notices are being uploaded under the different column, via. ‘View
Additional Notices/Orders column. Though it is contention of the learned Government Advocate that the respondent-Department has caused three reminders to the show cause notice, when the first notice, (viz., Show Cause Notice dated 22.05.2024 ) sent by the respondent itself via., On-line GST Portal been noticed by the petitioner/assessee, no useful purpose would be served by sending three reminders to such notices.
9.6 Thus, when the fact remains that the assessee/petitioner is not even aware of any of those notices being sent to them, it is not known as to what the respondent-Department would achieve by sending notice after notice and finally claiming that the petitioner has not failed to respond to any one of such notices and they are constrained to pass final orders, which
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even, the petitioner-assessee is unaware. Thus, only at the eleventh hour, when the petitioner is receiving an intimation either from the Department or their Banker as regards the attachment of their bank account, which is the ultimate step taken by the respondent-GST Department towards initiation of recovery proceedings in pursuance of the assessment proceedings, the petitioner-assessee are coming to know of the same, and by the time, the petitioner became aware of the impugned order and takes steps for filing Appeal, the same is getting barred by limitation, therefore, again, the petitioner is put to irreparable hardship, since obviously, the Appellate Authority would refuse to entertain such Appeal, as they have not been conferred with power to condone the delay, which is beyond their limit and onceagain, petitioner is constrained to approach this Court seeking permission to exhaust their Appellate remedy.
9.7 Thus, it is pertinent to mention here that though Section 169 of the Act, particularly, clause (d) prescribes mode of service via. Online Portal, the very same Section also prescribes many modes of services for sending notice to the assessees, of which, valid modes of sending GST
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Notices are hand-delivering the notices either directly or by a messenger by a courier to the taxpayer or his authorized representative, by registered post or a speed post or a courier with an acknowledgement addressed to the last known address of the taxpayer.
9.8 Thus, when the respondent-Department realizes the fact that the notice effected via, On-line portal service does not fetch them any reply/response, instead of sticking on to the similar of mode of service by sending notices/reminders incessantly, they could change mode of service and this Court suggests that notice through RPAD would be the best mode of service, in which case, the assessee cannot take advantage of the notice being unnoticed or plead ignorance, and in the case of the same being not delivered due to reasons such as ‘No such addressee’, ‘Incorrect address’, proper endorsement to such effect would be available to the respondentDepartment, and in the case of acceptance by the assessee,
acknowledgement of the same would be available, thereafter, there won’t be any fetter on the respondent-GST Department to proceed against the assessees in the manner known to law.
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9.9 Thus, this Court would like to point out herein that though Section 169 (d) empowers the respondent-Department to sent notice via. Online Portal, the very same Section prescribes other modes of service as well, and hence, it is expected from the respondent-Department firstly to ensure as to whether mode of service adopted by them would be an effective service in reaping the expected result, since it is ultimate goal of the respondent to prevent any revenue loss being caused to the Government’s exchequer. Had the notice caused by the respondent reaches the petitioner-assessee’s hand, definitely, the petitioner-assesseee would have come forward to file an effective reply/objection and convinced the respondent, whereby, the respondent would have either dropped further initiation of proceedings or else would have provided the reasons for rejection, which would have paved the way for the petitioner to go on Appeal challenging such rejection, however, since such an opportunity was deprived to the petitioner, the petitioner is now forced to pay
tax/interest/penalty.
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9.10 In the light of the above discussion and observations, this Court has no hesitation to hold that the impugned order is an ex parte order as the same suffers from violation of principles of natural justice and is liable to be aside on account of the fact that the petitioner has not been heard before passing such order. Therefore, this Court is inclined to set aside the impugned order. Thus, once the order is passed in violation of principles of natural justice, this Court cannot impose any condition requiring the petitioner to make any deposit, however, taking into consideration of the fact that 80% of the disputed tax has already been recovered from the petitioner by way of initiation of recovery proceedings pursuant to the impugned order, this Court, is inclined to pass the following
orders/directions:-
i) The impugned order dated 24.08.2024 passed by
the respondent is set aside.
ii) Consequently, the matter is remanded to the
respondent for fresh consideration.
iii) Thereafter, the petitioner is directed to file a reply
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along with supportive documents within a period of three weeks from the date of receipt of a copy of this order.
iv) Thereupon, the respondent is directed to consider the reply and shall issue a clear 14 days notice affording an opportunity of personal hearing to the petitioner and shall hear the petitioner in full and decide the matter in accordance with law.
v) Insofar as the Bank Attachment Notice issued in Form DRC -13 dated 05.02.2025 is concerned, it is needless to state that once the impugned order is set aside, the Bank Attachment Order can no longer survive and the same to be jettisoned by the respondent. Thus, the respondent is directed to issue appropriate communication in that regard on the petitioner’s Banker to de-freeze the bank account of the petitioner forthwith.
vi) So far as the aspect on adoption of mode of service by the respondent-Department is concerned, this Court would like to point out that once the respondentDepartment realizes the fact that notice effected via, On-line portal service does not fetch them any reply/response, then, the respondent, instead of sticking on to the similar of mode
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of service by sending repeated notices/reminders, incessantly, via. On-line Portal, they could change mode of service and this Court suggests that the traditional way of serving notice through RPAD would be the best mode of service, inasmuch as, the recent technological development, which enables the respondent-Department to send notice via. on-line services, have been invented only for the purpose of making the assessee to make them alert as to what is happening in their assessment proceedings immediately, however, when such purpose is not achieved, the better option that is available to the respondent is to adopt the traditional way of serving notice via. RPAD, as the upcoming technologies cannot usurp away the old traditional way of practice of sending notice through RPAD, in which case, the assessee cannot take advantage of the notice being unnoticed or plead ignorance.”
10. In the result, the Writ Petition is allowed on the aforesaid terms.
No costs. Consequently, connected Miscellaneous Petitions are closed.
24.02.2025
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Index : yes/no
To
The Deputy Commercial Tax Officer Chidambaram -I Cuddalore, Tamil Nadu.
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Krishnan Ramasamy,J., sd
W.P.No.5539 of 2025
24.02.2025
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