Ms. Mr.M.A. and Ms.Tabbassum Firdause, Advocates v. GOVT OF NCT OF DELHI ORS

Through: Mr.K.G.Gopalakrishanan, Ms.Nisha Mohan Das and Mr.Kunwar Raj Singh, Advocates Mr.Anurag Ojha, Mr.Subham Kumar, Advocate for R- 5. SSC CORAM: JUSTICE PRATHIBA M. SINGH JUSTICE RAJNEESH KUMAR GUPTA Prathiba M. Singh, J. (Oral)

2. This hearing has been done through hybrid mode. The present petition has been filed by the Petitioner– Brij Machine Tools through its Proprietor Brij Mohan Agarwal under Article 226 of the Constitution of India inter alia challenging the following: (i) (ii) the show cause notice (hereinafter, ‘the SCN’) dated 20th December, 2023 issued for the financial year 2018-19 the adjudication order dated 9th April, 2024 (hereinafter, ‘the impugned order’) passed by the Sales Tax Officer Class II/AVATO, Ward 21, Zone 2, Delhi under Section 73 of the Delhi/Central Goods and Services Tax Act, 2017 (hereinafter, ‘DGST/CGST Act, 2017’ Signature Not Verified Signed By:NAMITA DHYANI Signing Date:30.04.2025 19:38:19 W.P.(C) 14654/2024

3. Additionally, the present petition also challenges the Notification No. 56/2023- Central Tax dated 28th December, 2023 issued by the Central Board of Indirect Taxes and Customs (hereinafter, ‘the impugned notification’).

4. The present petition is a part of a batch of petitions wherein inter alia, the impugned notifications have been challenged. W.P.(C) No. 16499/2023 titled DJST Traders Private Limited v. Union of India & Ors. is the lead matter in the said batch of petitions. On the last date of hearing i.e., 22rd April, 2025, the parties were heard at length qua the validity of the impugned notifications and accordingly, the following order was passed: is essential the GST Council “4. Submissions have been heard in part. The broad challenge to both sets of Notifications is on the ground that the proper procedure was not followed prior to the issuance of the same. In terms of Section 168A, prior recommendation of extending deadlines. In respect of Notification no.9, the recommendation was made prior to the issuance of the insofar as Notification No. 56/2023 same. However, (Central Tax) the challenge is that the extension was granted contrary to the mandate under Section 168A of the Central Goods and Services Tax Act, 2017 and ratification was given subsequent to the issuance of the notification. The notification incorrectly states that it was on the recommendation of the GST Council. Insofar as the Notification No. 56 of 2023 (State Tax) is concerned, the challenge is to the effect that the same was issued on 11th July, 2024 after the expiry of the limitation in terms of the Notification No.13 of 2022 (State Tax). 5. In fact, Notification Nos. 09 and 56 of 2023 (Central Tax) were challenged before various other High Courts. The Allahabad Court has upheld the validity of Notification no.9. The Patna High Court has upheld the validity of Notification no.56. Whereas, the Guwahati Signature Not Verified Signed By:NAMITA DHYANI Signing Date:30.04.2025 19:38:19 W.P.(C) 14654/2024 High Court has quashed Notification No. 56 of 2023 (Central Tax). The Telangana High Court while not delving into 6. the vires of the assailed notifications, made certain observations in respect of invalidity of Notification No. 56 of 2023 (Central Tax). Telangana High Court in S.L.P No consideration by the Supreme Court 4240/2025 titled M/s HCC-SEW-MEIL-AAG JV v. Assistant Commissioner of State Tax & Ors. The Supreme Court vide order dated 21st February, 2025, passed the following order in the said case: This judgment of now presently “1. The subject matter of challenge before the High Court was to the legality, validity and propriety of the Notification No.13/2022 dated 5-7- 2022 & Notification Nos.9 and 56 of 2023 dated 31-3-2023 & 8-12-2023 respectively. 2. However, in the present petition, we are concerned with Notification Nos.9 & 56/2023 dated 31-3-2023 respectively. 3. These Notifications have been issued in the 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 learned Senior counsel appearing for the petitioner. 5. The issue that falls for the consideration of this Court is whether the time limit for adjudication of show cause notice and passing order under Section 73 of the GST Act and SGST Act (Telangana GST Act) for financial year 2019-2020 could have been extended by issuing the Notifications in question under Section 168-A of the GST Act. 6. There are many other issues also arising for consideration in this matter. 7. Dr. Muralidhar pointed out there is a cleavage of opinion amongst different High Courts Signature Not Verified Signed By:NAMITA DHYANI Signing Date:30.04.2025 19:38:19 W.P.(C) 14654/2024 of the country. 8. Issue notice on the SLP as also on the prayer for interim relief, returnable on 7-3- 2025.” 7. In the meantime, the challenges were also pending and the Punjab and before the Bombay High Court Haryana High Court . In the Punjab and Haryana High Court vide order dated 12th March, 2025, all the writ petitions have been disposed of in terms of the interim orders passed therein. The operative portion of the said order reads as under: the Hon'ble Supreme Court “65. Almost all the issues, which have been raised before us in these present connected cases and have been noticed hereinabove, are the subject in the matter of aforesaid SLP. 66. Keeping in view the judicial discipline, we refrain from giving our opinion with respect to the vires of Section 168-A of the Act as well as the notifications issued in purported exercise of power under Section 168-A of the Act which have been challenged, and we direct that all these present connected cases shall be governed by the judgment passed by the Hon'ble Supreme Court and the decision thereto shall be binding on these cases too. 67. Since the matter is pending before the Hon'ble Supreme Court, the interim order passed in the present cases, would continue to operate and would be governed by the final adjudication by the Supreme Court on the issues in the aforesaid SLP- 4240-2025. 68. In view of the aforesaid, all these connected cases are disposed of accordingly along with pending applications, if any.” 8. The Court has heard ld. Counsels for the parties for a substantial period today. A perusal of the above would show that various High Courts have taken a view and the matter is squarely now pending before the Signature Not Verified Signed By:NAMITA DHYANI Signing Date:30.04.2025 19:38:19 W.P.(C) 14654/2024 Supreme Court. Apart from the challenge to the notifications itself, 9. various counsels submit that even if the same are upheld, they would still pray for relief for the parties as the Petitioners have been unable to file replies due to several reasons and were unable to avail of personal hearings in most cases. In effect therefore in most cases the adjudication orders are passed ex-parte. Huge demands have been raised and even penalties have been imposed. Broadly, there are six categories of cases which 10. are pending before this Court. While the issue concerning the validity of the impugned notifications is presently under consideration before the Supreme Court, is of the prima facie view that, depending upon the categories of petitions, orders can be passed affording an opportunity to the Petitioners to place their stand before the adjudicating authority. In some cases, proceedings including appellate remedies may be permitted to be pursued by the Petitioners, without delving into the question of the validity of the said notifications at this stage. The said categories and proposed reliefs have 11. been broadly put to the parties today. They may seek instructions and revert by tomorrow i.e., 23rd April, 2025. this Court

5. As observed by this Court in the order dated 22nd April, 2025, since the challenge to the above mentioned notification is presently under consideration before the Supreme Court in S.L.P No 4240/2025 titled M/s HCC-SEW-MEIL-AAG JV v. Assistant Commissioner of State Tax & Ors., the challenge made by the Petitioner to the notification in the present proceedings shall also be subject to the outcome of the decision of the Supreme Court.

6. On facts, however, the submission of the Petitioner is that the SCN Signature Not Verified Signed By:NAMITA DHYANI Signing Date:30.04.2025 19:38:19 W.P.(C) 14654/2024 dated 20th December, 2023 was uploaded on ‘Additional Notices Tab’ therefore, the same was not brought to the knowledge of the Petitioner. The impugned order dated 9th April, 2024 was passed without providing the Petitioner a personal hearing and in absence of a reply on behalf of the Petitioner.

7. In fact this Court in W.P.(C) 13727/2024 titled ‘Neelgiri Machinery through its Proprietor Mr. Anil Kumar V. Commissioner Delhi Goods And Service Tax And Others’, under similar circumstances where the SCN was uploaded vide ‘Additional Notices Tab’ had remanded the matter in the following temrs: “6. Be that as it may, intention is to ensure that the Petitioner is given an opportunity to file its reply and is heard on merits and that orders are not passed in default. Since there is no clarity on behalf of the Department, this Court follows the order dated 9th September, 2024 in Satish Chand Mittal (Trade Name National Rubber Products) vs. Sales Tax Officer SGST, Ward 25-Zone 1 (W.P.(C) 12589/2024; DHC) as also order dated 23rd December, 2024 in Anant Wire Industries vs. Sales Tax Officers Class II/Avato, Ward 83 & Anr (W.P.(C) 17867/2024; DHC) where the Court under similar circumstances has remanded back the matter to ensure the Noticee/Petitioners get a fair opportunity to be heard. The order of the Court in Sathish Chand Mittal (Supra) reads as under: “4. It is the petitioner’s case that he had not received the impugned SCN and, therefore, he had no opportunity to respond to the same. For the same reason, the petitioner claims that he had not appear for a personal hearing before scheduled on the Adjudicating Authority, which was 17.10.2023 and later rescheduled to 30.11.2023 as per the Reminder. 5. The petitioner also states that the impugned SCN, the Reminder and the impugned order are unsigned. 6. Mr. Singhvi, the learned counsel appearing for the Signature Not Verified Signed By:NAMITA DHYANI Signing Date:30.04.2025 19:38:19 W.P.(C) 14654/2024 this Court fairly states that respondent, on advance notice, principal issue involved in the present case is squarely covered by the decisions of in M/s ACE Cardiopathy Solutions Private Ltd. v. Union of India & Ors.: Neutral Citation No. 2024:DHC:4108-DB as well as in Kamla Vohra v. Sales Tax Officer Class II/ Avato Ward 52 : Neutral Citation No.2024:DHC:5108- DB. 7. He states that possibly, the petitioner did not had the access of the Notices as they were projected on the GST Portal under the tab ‘Additional Notices & Orders’. He submits that the said issue has now been addressed and the ‘Additional Notices & Orders’ tab is placed under the general menu and adjacent to the tab ‘Notices & Orders’. 8. In view of the above, the present petition is allowed and the impugned order is set aside. 9. The respondent is granted another opportunity to reply to the impugned SCN within a period of two weeks from date. The Adjudicating Authority shall consider the same and pass such order, as it deems fit, after affording the petitioner an opportunity to be heard. 10. The present petition is disposed of in the aforesaid terms. 11. All pending applications are also disposed of.” The impugned demand orders dated 23rd April, 2024 and 5th 7. December, 2023 are accordingly set aside. In response to show cause notices dated 04th December, 2023 and 23th September, 2023, the Petitioner shall file its replies within thirty days. The hearing notices shall now not be merely uploaded on the portal but shall also be e-mailed to the Petitioner and upon the hearing notice being received, the Petitioner would appear before the Department and make its submissions. The show cause notices shall be adjudicated in accordance with law. 8. pending application(s), if any, also stand disposed of.” The petitions are disposed of in the above terms. The

8. It is relevant to note that post 17th January 2024, the Department has effected changes in the portal to ensure that the SCNs become visible to Signature Not Verified Signed By:NAMITA DHYANI Signing Date:30.04.2025 19:38:19 W.P.(C) 14654/2024 parties. However, the SCN in the present case is of December 2023, therefore, following the above decision in W.P.(C) 13727/2024, impugned order is set aside. Let the entire matter be considered afresh after giving a personal hearing notice to the Petitioner on the following email ID of the Petitioner. Email – [email protected]

9. The Petitioner is permitted to file his reply before the concerned adjudication authority within 30 days.

10. However, it is made clear that the issue in respect of the validity of the impugned notification is left open. Any order passed by the Adjudicating authority shall be subject to the outcome of the decision of the Supreme Court.

11. The petition is disposed of in the above terms. Pending applications, if any, are also disposed of. PRATHIBA M. SINGH JUDGE RAJNEESH KUMAR GUPTA JUDGE APRIL 23, 2025 SV/Ar. (corrected and released on 28th April, 2025) Signature Not Verified Signed By:NAMITA DHYANI Signing Date:30.04.2025 19:38:19 W.P.(C) 14654/2024