Full Text
HIGH COURT OF DELHI
Date of Decision: 6th May, 2025
TEK XPLORE THROUGH ITS PROPRIETOR MS. RENUKA MAINI .....Petitioner
Through: Mr. Anurag Soan, Adv.
Through: Mr. K.G. Gopalakrishnan, Mr. Sumit K. Batra and Ms. Nisha Mohandas, Advs.
Prathiba M. Singh, J. (Oral)
JUDGMENT
1. This hearing has been done through hybrid mode.
2. The present petition under Article 226 of the Constitution of India is filed by the Petitioner-Tek Xplore through its Proprietor Ms. Renuka Maini inter alia challenging Show Cause Notice dated 29th May, 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 the Central 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 this Court in a batch of matters with the lead matter being W.P.(C) 16499/2023 titled ‘DJST Traders Pvt. Ltd. vs. Union of India and Ors.’. On 22rd April, 2025, the parties were heard at length qua the validity of the impugned notification and accordingly, the following order was passed:
the vires of the assailed notifications, made certain observations in respect of invalidity of Notification No. 56 of 2023 (Central Tax). This judgment of the Telangana High Court is now presently under consideration by 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 Supreme Court vide order dated 21st February, 2025, passed the following order in the said case:
7. In the meantime, the challenges were also pending before the Bombay High Court and the Punjab and 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:
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 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 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.
10. Broadly, there are six categories of cases which are pending before this Court. While the issue concerning the validity of the impugned notifications is presently under consideration before the Supreme Court, this 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.
11. The said categories and proposed reliefs have been broadly put to the parties today. They may seek instructions and revert by tomorrow i.e., 23rd April, 2025.”
5. Thereafter, on 23rd April, 2025, this Court, having noted that the validity of the impugned notification is under consideration before the Supreme Court, had disposed of several matters in the said batch of petitions after addressing other factual issues raised in the respective petitions. Additionally, while disposing of the said petitions, this Court clearly observed that the validity of the impugned notifications therein shall be subject to the outcome of the proceedings before the Supreme Court.
6. On facts, ld. Counsel for the Petitioner submits that the application for partial waiver of pre-deposit, being CM APPL. 53739/2024, which was filed along with the present writ petition, was dismissed by this Court at the request of the Petitioner vide order dated 1st October, 2024. In view thereof, the Petitioner has already challenged the impugned order dated 28th August, 2024 before the Appellate Authority under Section 107 of the CGST Act upon paying the prescribed pre-deposit.
7. Insofar as the challenge to Section 16(2)(c) of the CGST Act is concerned, the said issue is pending before this Court in another batch of matters with the lead matter being W.P.(C) 6293/2019 titled Bharti Telemedia v. Union of India & Ors.
8. Considering the fact that the appeal against the impugned order has already been filed, the Court is of the opinion that the impugned order does not warrant interference at this stage. Accordingly, the Petitioner is free to pursue the appeal in accordance with law.
9. Considering the present writ petition has been pending before this Court for several months, it is made clear that the Appellate Authority shall not dismiss the appeal on the ground of limitation and adjudicate the same on merits.
10. All the rights and remedies of the parties are left open. Access to the GST Portal, if not already available, shall be ensured to be provided to the Petitioner to enable access to the notices and related documents.
11. However, it is clarified that the issues in respect of the validity of (i) the impugned notification and (ii) Section 16(2)(c) of CGST Act are left open and the order of the Appellate Authority shall be subject to 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.
12. The petition is disposed of in these terms. All pending applications, if any, are also disposed of.