Amit Kumar Basau & Anr. v. Sales Tax Officer Class II Avato Ward 13 (Special Zone) Zone 12 Delhi & Ors.

1. This hearing has been done through hybrid mode. CM APPL. 62788/2025

2. Allowed, subject to all just exceptions. The application is disposed of. W.P.(C) 15327/2025 & CM APPL. 62787/2025

3. The present petition has been filed under Articles 226 & 227 of the Constitution of India, inter alia, challenging the impugned order dated 20th February, 2025 passed by the Sales Tax Officer Class II/Avato Ward 113(Special Zone), Zone 12, Delhi (hereinafter ‘impugned order’). The present petition also challenges the impugned Show Cause Notice dated 27th November, 2024 (hereinafter ‘impugned SCN’) issued for the financial year 2020-21. Vide the impugned order the tax demand raised against the Petitioner is Rs.59,05,232/- and the total demand including interest and penalty is Rs.1,09,02,348/-.

4. Additionally, the present petition also challenges the following Notifications: ● Notification No. 40/2021- Central Tax dated 29th December 2021; ● Notification No. 40/2021- State Tax dated 9th June 2022 (hereinafter, ‘the impugned notifications’).

5. The challenge to the impugned notifications is pending before this Court in a batch of cases wherein the lead matter is W.P.(C) 9060/2025 titled Sarens Heavy Lift India Private Limited v. Sales Tax Officer Class II AVATO DGST Ward 201, Zone 11 & Anr.

6. Ld. Counsel for the Petitioner submits that the Petitioner – Mr. Amit Kumar Basau, is the partner in the Petitioner No.2 - M/s Basau Construction (India), which is a partnership firm. However, the same is unregistered. The petition has therefore impleaded the Partner as Petitioner No.1 – Mr. Amit Kumar Basau.

7. Ld. Counsel for the Respondents has taken an objection that since the partnership firm is an un-registered firm, the writ petition is not maintainable.

8. Per Contra, Ld. Counsel for the Petitioner relies on the decision of the Supreme Court in Haldiram Bhujiawala v. Anand Kumar Deepak Kumar, (2000) 3 SCC 250 to argue that an unregistered partnership firms can file a writ petition through a partner.

9. Further, ld. Counsel for the Petitioner submits that impugned SCN was issued on 27th November, 2024. Thereafter, a reminder was issued on 13th January, 2025. The submission of the Petitioner is that no reply has been filed to the impugned SCN. The reason given by the Petitioner is that its Chartered Accountant’s oversight led to non-filing of the reply. Thus, the impugned order has been passed without hearing the Petitioner.

10. Ld. Counsel for the Petitioner submits that the Petitioner is willing to go in appeal, subject to the outcome in Sarens (supra), by which the impugned notifications have been challenged.

11. Heard. The Court has considered the matter. Section 69 of the Indian Partnership Act, 1932 has an embargo on an un-registered firm from filing a suit or any proceeding for enforcement of a right. The same reads as under:

12. However, the exceptions to the said provision are carved out in the following decisions: ● Haldiram Bhujiawala & Anr. v. Anand Kumar Deepak Kumar & Anr. [(2000)3 SCC 250]: “9. The question whether Section 69(2) is a bar to a suit filed by an unregistered firm even if a statutory right is being enforced or even if only a common law right is being enforced came up directly for consideration in this Court in Raptakas Brett Co. Ltd. v. Ganesh Property. In that case, Majmudar, J. speaking for the Bench clearly expressed the view that Section 69(2) cannot bar the enforcement by way of a suit by an unregistered firm in respect of a statutory right or a common law right….” ● Shiv Developers v. Aksharay Developers & Ors. [2022 SCC OnLine 114]

13. Therefore, Section 69(2) of the Partnership Act, 1932 cannot place a bar to a suit filed by an unregistered firm, if a statutory or common law right is being sought to be enforced. In the present case, the writ petition seeks reliefs under the CGST Act, under which the Petitioner no.2 has a registration - despite being an unregistered Partnership firm. Such a firm, which is paying taxes and has any grievances against the Department cannot be non-suited from enforcing statutory rights. Moreover, since the Partner has also been impleaded, it cannot be held that the writ petition is maintainable. In view of the above, since the partner has been made a party to the writ petition and has filed the present writ petition as Petitioner No.1, the writ petition is held to be maintainable.