WRIT PETITION 15106/2025 on 28 December 2023

JUDGMENT

Prathiba M. Singh, J.

1. This hearing has been done through hybrid mode.

2. The Petitioner has filed the present petition, inter alia, challenging theimpugned order dated 3[rd]August, 2024 passed by the Sales Tax Officer ClassII/Avato Ward 10, Zone-4, Delhi in respect of Financial Year 2019-2020. Theimpugned order has been passed pursuant to the Show Cause Notice dated 29[th]May, 2024 (hereinafter “the SCN”) raising a demand of Rs. 45,05,674/- againstthe Petitioner.

3. Additionally, the present petition also challenges the Notification No.56/2023-Central Tax dated 28th December, 2023 and Notification No.56/2023-State Tax dated 11th July, 2024 (hereinafter “the impugnednotifications”).

4. The challenge in the present petition is similar to a batch of petitionswherein, inter alia, the impugned notifications were challenged. W.P.(C) No.16499/2023 titled DJST Traders Private Limited v. Union of India &Ors.was the lead matter in the said batch of petitions. On 22[nd]April, 2025, theparties were heard at length qua the validity of the impugned notifications andaccordingly, the following order was passed:

“4.Submissions have been heard in part. The broadchallenge to both sets of Notifications is on the ground thatthe proper procedure was not followed prior to theissuance of the same. In terms of Section 168A, priorrecommendation of the GST Council is essential forextending deadlines. In respect of Notification no.9, therecommendation was made prior to the issuance of thesame. However, insofar as Notification No. 56/2023(Central Tax) the challenge is that the extension wasgranted contrary to the mandate under Section 168A of theCentral Goods and Services Tax Act, 2017 and ratificationwas given subsequent to the issuance of the notification.The notification incorrectly states that it was on therecommendation of the GST Council. Insofar as theNotification No. 56 of 2023 (State Tax) is concerned, thechallenge is to the effect that the same was issued on 11thJuly, 2024 after the expiry of the limitation in terms of theNotification No.13 of 2022 (State Tax).

5. In fact, Notification Nos. 09 and 56 of 2023 (CentralTax) were challenged before various other High Courts.TheAllahabadCourthasupheldthevalidityofNotification no.9. The Patna High Court has upheld thevalidity of Notification no.56. Whereas, the GuwahatiHigh Court has quashed Notification No. 56 of 2023(Central Tax).

6. The Telangana High Courtwhile not delving intothe vires of the assailed notifications, made certain observations in respect of invalidity of Notification No. 56of 2023 (Central Tax). This judgment of the TelanganaHigh Court is now presently under consideration by theSupreme Court in S.L.P No 4240/2025 titled M/s HCC-SEW-MEIL-AAG JV v. Assistant Commissioner of StateTax &Ors. The Supreme Court vide order dated 21stFebruary, 2025, passed the following order in the saidcase:

“1. The subject matter of challenge before theHigh Court was to the legality, validity andpropriety of the Notification No.13/2022 dated5-7-2022 & Notification Nos.9 and 56 of 2023dated 31-3-2023 & 8-12-2023 respectively.

2. However, in the present petition, we areconcerned with Notification Nos.9 & 56/2023dated 31-3-2023 respectively.

3. These Notifications have been issued in thepurported exercise of power under Section 168(A) of the Central Goods and Services Tax Act.2017 (for short, the "GST Act").

4. We have heard Dr. S. Muralidhar, thelearned Senior counsel appearing for thepetitioner.

5. The issue that falls for the consideration ofthis Court is whether the time limit foradjudication of show cause notice and passingorder under Section 73 of the GST Act andSGST Act (Telangana GST Act) for financialyear 2019-2020 could have been extended byissuing the Notifications in question underSection 168-A of the GST Act.

6. There are many other issues also arising forconsideration in this matter.

7. Dr. Muralidhar pointed out that there is acleavage of opinion amongst different HighCourts of the country. 8. Issue notice on theSLP as also on the prayer for interim relief, Signature Not Verified returnable on 7-3-2025.”

7. In the meantime, the challenges were also pendingbefore the Bombay High Court and the Punjab andHaryana High Court. In the Punjab and Haryana HighCourt vide order dated 12th March, 2025, all the writpetitions have been disposed of in terms of the interimorders passed therein. The operative portion of the saidorder reads as under:

“65. Almost all the issues, which have beenraised before us in these present connectedcases and have been noticed hereinabove, arethe subject matter of the Hon'ble SupremeCourt in the aforesaid SLP.66. Keeping in view the judicial discipline, werefrain from giving our opinion with respect tothe vires of Section 168-A of the Act as well asthe notifications issued in purported exerciseof power under Section 168-A of the Act whichhave been challenged, and we direct that allthesepresentconnectedcasesshallbegoverned by the judgment passed by theHon'ble Supreme Court and the decisionthereto shall be binding on these cases too.67. Since the matter is pending before theHon'ble Supreme Court, the interim orderpassed in the present cases, would continue tooperate and would be governed by the finaladjudication by the Supreme Court on theissues in the aforesaid SLP-4240-2025.68.In view of the aforesaid, all theseconnected cases are disposed of accordinglyalong with pending applications, if any.”

8. The Court has heard ld. Counsels for the partiesfor a substantial period today. A perusal of the abovewould show that various High Courts have taken a viewand the matter is squarely now pending before the Supreme Court.

9. Apart from the challenge to the notifications itself,various counsels submit that even if the same are upheld,they would still pray for relief for the parties as thePetitioners have been unable to file replies due to severalreasons and were unable to avail of personal hearings inmost cases. In effect therefore in most cases the-adjudication orders are passed exparte. Huge demandshave been raised and even penalties have been imposed.

10. Broadly, there are six categories of cases whicharependingbeforethisCourt.Whiletheissueconcerning the validity of the impugned notifications ispresently under consideration before the Supreme Court,this Court is of the prima facie view that, depending uponthe categories of petitions, orders can be passedaffording an opportunity to the Petitioners to place theirstand before the adjudicating authority. In some cases,proceedingsincludingappellateremediesmaybepermitted to be pursued by the Petitioners, withoutdelving into the question of the validity of the saidnotifications at this stage.

11. The said categories and proposed reliefs have beenbroadly put to the parties today. They may seekinstructions and revert by tomorrow i.e., 23rd April,2025.”

5. The abovementioned writ petition and various other writ petitions havebeen disposed of by this Court on subsequent dates, either remanding thematters or relegating the parties to avail of their appellate remedies, dependingupon the factual situation in the respective cases. All such orders are subject tofurther orders of the Supreme Court in respect of the validity of the NotificationNo. 56/2023-Central Tax in S.L.P No 4240/2025 titled M/s HCC-SEW-MEIL- AAG JV v. Assistant Commissioner of State Tax &Ors.

6. As observed by this Court in the order dated 22nd April, 2025 as well,since the challenge to the above mentioned notifications is presently underconsideration before the Supreme Court in M/s HCC-SEW-MEIL-AAG JV(supra) the challenge made by the Petitioner to the impugned notifications inthe present proceedings shall also be subject to the outcome of the decision ofthe Supreme Court.

7. However, in cases where the challenge is to the parallel StateNotifications, the same have been retained for consideration by this Court.The lead matter in the said batch is W.P.(C) 9214/2024 titled Engineers IndiaLimited v. Union of India &Ors.

8. Coming to the facts of the present case, the submission of the Petitioneris that the SCN dated 29th May, 2024 was uploaded on the ‘Additional NoticesTab’ on the GST portal. Hence, the Petitioner was not aware of the same andno reply was filed to the SCN. Further, the Petitioner also did not avail theopportunity of personal hearing provided on 1st July, 2024. Thereafter,reminder notices are also stated to have been issued to the Petitioner on 8[th]July,2024 and 23[rd]July, 2024, whereby a further date for personal hearing was fixedon 22nd July, 2024. However, despite the reminder notices and anotheropportunity of personal hearing the Petitioner had not filed a reply or appearedfor personal hearing. Thus, it is the case of the Petitioner that the impugnedorder has been passed without hearing the Petitioner.

9. The Court has heard the parties. The ground raised by the Petitioner fornot being aware of the SCN i.e., the SCN having been uploaded on the‘Additional Notices Tab’, is not tenable in view of the fact that after 16th January 2024, changes have been made to the GST portal and the ‘AdditionalNotices Tab’ has been made visible.

10. However, this CourtinW.P.(C) 4779/2025titled ‘SugandhaEnterprisesthroughitsProprietorDevenderKumarSinghV.Commissioner Delhi Goods And Service Tax And Others’, under similarcircumstances where no reply was filed to the SCN had remanded the matterin the following terms:

“6. On facts, however, the submission of thePetitioner in the present petition is that thePetitioner was not afforded with an opportunity tofile a reply to the SCN dated 23rd May, 2024 and theimpugned order was passed without affording thePetitioner with an opportunity to be heard. Hence,the impugned order is a non-speaking order and isliable to be set aside on the said ground.

7. Heard. The Court has considered the submissionsmade. The Court has perused the records. In thispetition, as mentioned above, no reply to the SCNhas been filed by the Petitioner. Relevant portion ofthe impugned order reads as under:

Andwhereas,thetaxpayerhadneitherdeposited the proposed demand nor filed theirobjections/replyinDRC-06withinthestipulated period of time, therefore, followingthe Principle of Natural Justice, the taxpayerwas granted opportunities of personal hearingfor submission of their reply/objections againstthe proposed demand before passing anyadverse order.

Andwhereas,neitherthetaxpayerfiledobjections/reply in DRC 06 nor appeared forpersonal hearing despite giving sufficientopportunities, therefore, the undersigned is left with no other option but to upheld the demandraised in SCN/DRC 01. DRC 07 is issuedaccordingly.

8. This Court is of the opinion that since thePetitioner has not been afforded an opportunity tobe heard and the said SCN and the consequentimpugned order have been passed without hearingthe Petitioner, an opportunity ought to be affordedto the Petitioner to contest the matter on merits.

9. Accordingly, the impugned order is set aside. ThePetitioner is granted 30 days’ time to file the replyto SCN. Upon filing of the reply, the AdjudicatingAuthority shall issue to the Petitioner, a notice forpersonal hearing. The personal hearing notice shallbe communicated to the Petitioner on the followingmobile no. and e-mail address:....”

11. Under such circumstances, considering the fact that the Petitioner didnot get a proper opportunity to be heard and no reply to the SCN has beenfiled by the Petitioner, the matter deserves to be remanded back to theconcerned Adjudicating Authority.

12. Considering the fact that no satisfactory explanation for non-filing ofreply has been provided by the Petitioner, costs of Rs. 25,000/- is imposed uponthe Petitioner for depositing with the Department.

13. Accordingly, the impugned order is set aside and the matter isremanded to the Adjudicating Authority.

14. The Petitioner is granted time till 15[th]November, 2025, to file the replyto SCN. Upon filing of the reply, the Adjudicating Authority shall issue to thePetitioner, a notice for personal hearing. The personal hearing notice shall becommunicated to the Petitioner on the following mobile no. and e-mailaddress:

●Mobile No.: [REDACTED]

●E-mail Address : [REDACTED]

15. Subject to the deposit of cost mentioned above being deposited in twoweeks, a personal hearing shall be afforded to the Petitioner.

16. The reply filed by the Petitioner to the SCN along with the submissionsmade in the personal hearing proceedings shall be duly considered by theAdjudicating Authority and a fresh reasoned order with respect to the SCNshall be passed.

17. However, it is made clear that the issue in respect of the validity of theimpugned notifications is left open. Any order passed by the AdjudicatingAuthority shall be subject to the outcome of the decision of the Supreme Courtin S.L.P No 4240/2025 titled M/s HCC-SEW-MEIL-AAG JV v. AssistantCommissioner of State Tax &Ors. and this Court in W.P.(C) 9214/2024 titled‘Engineers India Limited v. Union of India &Ors’.

18. The petition is disposed of in these terms. All pending applications, ifany, are also disposed of.

PRATHIBA M. SINGHJUDGE

SEPTEMBER 26, 2025Rahul/msh/rm

SHAIL JAINJUDGE