WRIT PETITION 12893/2024 on 28 December 2023

1. This hearing has been done through hybrid mode.

2. The present petition under Article 226 of the Constitution ofIndia is filed by the Petitioner-Tek Xplore through its Proprietor Ms.Renuka Maini inter alia challenging Show Cause Notice dated 29thMay, 2024 (hereinafter ‘impugned SCN’) and order dated 28th August,2024 (hereinafter ‘impugned order’) passed by Respondent No.2 -Sales Tax Officer Class II/AVATO, Ward 70, Zone 4, Delhi.

3. It additionally challenges the vires of Section 16(2)(c) of theCentral Goods and Service Tax Act, 2017 (hereinafter ‘CGST Act’) and Notification 56/2023-Central Tax dated 28th December, 2023(hereinafter ‘impugned notification’)

4. The impugned notification was under consideration before thisCourt in a batch of matters with the lead matter being W.P.(C)16499/2023 titled ‘DJST Traders Pvt. Ltd. vs. Union of India andOrs.’. On 22rd April, 2025, the parties were heard at length qua thevalidity of the impugned notification and accordingly, the followingorder 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.The Allahabad Courthas upheld the validity ofNotification no.9. The Patna High Court has upheld thevalidity of Notification no.56. Whereas, the GuwahatiHigh Courthas quashed Notification No. 56 of 2023(Central Tax).

6. The Telangana High Courtwhile not delving into the vires of the assailed notifications, made certainobservations 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.High 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.concerned 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").purported 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, the learnedSenior counsel appearing for the petitioner.Senior counsel appearing for the petitioner.

5. The issue that falls for the consideration ofthisCourtiswhether thetimelimit foradjudication of show cause notice and passingorder under Section 73 of the GST Act and SGSTAct (Telangana GST Act) for financial year2019-2020 could have been extended by issuingthe Notifications in question under Section 168-A of the GST Act.thisCourtiswhether thetimelimit foradjudication of show cause notice and passingorder under Section 73 of the GST Act and SGSTAct (Telangana GST Act) for financial year2019-2020 could have been extended by issuingthe Notifications in question under Section 168-A of the GST Act.

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

7. Dr. Muralidhar pointed out that there is acleavage of opinion amongst different HighCourts of the country. 8. Issue notice on the SLPas also on the prayer for interim relief,returnable on 7-3-2025.”cleavage of opinion amongst different HighCourts of the country. 8. Issue notice on the SLPas also on the prayer for interim relief,returnable on 7-3-2025.”

7. In the meantime, the challenges were also pendingbefore the Bombay High Courtand 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 been raised before us in these present connected casesand have been noticed hereinabove, are thesubject matter of the Hon'ble Supreme Court inthe aforesaid SLP.and have been noticed hereinabove, are thesubject matter of the Hon'ble Supreme Court inthe 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 exercise ofpower under Section 168-A of the Act whichhave been challenged, and we direct that allthese present connected cases shall be governedby the judgment passed by the Hon'ble SupremeCourt and the decision thereto shall be bindingon 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 the issuesin the aforesaid SLP-4240-2025.

68. In view of the aforesaid, all these connectedcases are disposed of accordingly along withpending applications, if any.”

8. The Court has heard ld. Counsels for the partiesfor a substantial period today. A perusal of the above would show that various High Courts have taken a viewand the matter is squarely now pending before theSupreme 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. Thereafter, on 23rd April, 2025, this Court, having noted that thevalidity of the impugned notification is under consideration before theSupreme Court, had disposed of several matters in the said batch ofpetitions after addressing other factual issues raised in the respectivepetitions. Additionally, while disposing of the said petitions, this Courtclearly observed that the validity of the impugned notifications thereinshall be subject to the outcome of the proceedings before the SupremeCourt.

6. On facts, ld. Counsel for the Petitioner submits that theapplication for partial waiver of pre-deposit, being CM APPL.

53739/2024, which was filed along with the present writ petition, wasdismissed by this Court at the request of the Petitioner vide order dated1[st]October, 2024. In view thereof, the Petitioner has already challengedthe impugned order dated 28[th]August, 2024 before the AppellateAuthority under Section 107 of the CGST Act upon paying theprescribed pre-deposit.

7. Insofar as the challenge to Section 16(2)(c) of the CGST Act isconcerned, the said issue is pending before this Court in another batchof matters with the lead matter being W.P.(C) 6293/2019 titled BhartiTelemedia v. Union of India & Ors.

8. Considering the fact that the appeal against the impugned orderhas already been filed, the Court is of the opinion that the impugnedorder does not warrant interference at this stage. Accordingly, thePetitioner is free to pursue the appeal in accordance with law.

9. Considering the present writ petition has been pending beforethis Court for several months, it is made clear that the AppellateAuthority shall not dismiss the appeal on the ground of limitation andadjudicate the same on merits.

10. All the rights and remedies of the parties are left open. Access tothe GST Portal, if not already available, shall be ensured to be providedto the Petitioner to enable access to the notices and related documents.

11. However, it is clarified that the issues in respect of the validityof (i) the impugned notification and (ii) Section 16(2)(c) of CGST Actare left open and the order of the Appellate Authority shall be subjectto the outcome of the decision of

(i) The Supreme Court in S.L.P No 4240/2025 titled ‘M/s HCC- & Ors’; and

(ii) This Court in W.P.(C) 6293/2019 titled Bharti Telemedia v.Union of India & Ors.

12. The petition is disposed of in these terms. All pendingapplications, if any, are also disposed of.

PRATHIBA M. SINGHJUDGE

MAY 6, 2025Rahul/Ar.

RAJNEESH KUMAR GUPTAJUDGE

(corrected and released on 13[th]May, 2025)