Full Text
HIGH COURT OF DELHI
Date of Decision: 8th October 2025
AMIT KUMAR BASAU & ANR. .....Petitioners
Through: Mr. Abhishek Garg & Mr. Naman Mehta, Advs.
ZONE), ZONE 12, DELHI & ORS. .....Respondents
Through: Mr. Sumit K. Batra, Adv. (9911211000)
Mr. Arun Khatri, SSC
JUDGMENT
1. This hearing has been done through hybrid mode. CM APPL. 62792/2025
2. Allowed, subject to all just exceptions. The application is disposed of. W.P.(C) 15329/2025 & CM APPL. 62791/2025
3. The present petition has been filed under Articles 226 & 227 of the Constitution of India, inter alia, challenging the impugned order dated 16th December, 2023 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 21st September, 2023 (hereinafter ‘impugned SCN’) issued for the financial year 2017-18. Vide the impugned order the tax demand raised against the Petitioner is Rs.55,626/- and the total demand including interest and penalty is Rs.1,31,252/-.
4. Additionally, the present petition also challenges the following Notifications: ● Notification No. 09/2023- Central Tax dated 31st March 2023; ● Notification No. 09/2023- State Tax dated 22nd June 2023 (hereinafter, ‘the impugned notifications’).
5. The challenge in the present petition is similar to a batch of petitions wherein 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 22nd April 2025, the parties were heard at length qua the validity of the impugned notifications and accordingly, the following order was passed:
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 High Court has quashed Notification No. 56 of 2023 (Central Tax).
6. The Telangana High Court while not delving into 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:
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 that there is a cleavage of opinion amongst different High Courts 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 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:
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 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.”
6. The abovementioned writ petition and various other writ petitions have been disposed of by this Court on subsequent dates, either remanding the matters or relegating the parties to avail of their appellate remedies, depending upon the fact situation. All such orders are subject to further orders of the
7. As observed by this Court in the order dated 22nd April 2025 as well, since the challenge to the above mentioned notifications 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 impugned notifications in the present proceedings shall also be subject to the outcome of the decision of the
8. However, in cases where the challenge is to the parallel State Notifications, 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 India Limited v. Union of India &Ors.
9. On facts, ld. Counsel for the Petitioner submits that the Petitioner – Mr. Amit Kumar Basau, is a partner in the Petitioner No.2 - M/s Basau Construction (India), which is a partnership firm. However, the same is unregistered. Therefore, the petition has also been preferred by the Petitioner No.1 – Mr. Amit Kumar Basau.
10. 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.
11. 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 unregistered partnership firms can file a writ petition through a partner.
12. The impugned SCN was issued to the Petitioner on 21st September,
2023. Thereafter, a reminder notice was also issued to the Petitioner on 5th December 2023 which was uploaded on ‘Additional Notices and Tabs’. The submission of the Petitioner is that no reply has been filed by the Petitioner to the impugned SCN, nor any personal hearing has been attended. It is submitted that the impugned SCN was uploaded on the ‘Additional Notices and Tabs’. Thus, the impugned order has been passed without hearing the Petitioner.
13. The Court has heard the parties. There is no doubt that after 16th January 2024, changes have been made to the GST portal and the ‘Additional Notices Tab’ has been made visible. In the present case, impugned SCN was issued on 21st September 2023, thereby the ground of uploading of impugned SCN on ‘Additional Notices Tab’ is not sustainable.
14. 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 on the ‘Additional Notices Tab’ had remanded the matter in the following terms:
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.”
7. The impugned demand orders dated 23rd April, 2024 and 5th 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. The petitions are disposed of in the above terms. The pending application(s), if any, also stand disposed of.”
15. There is no doubt that after 16th January 2024, changes have been made to the GST portal and the ‘Additional Notices Tab’ has been made visible. However, in the present case, the impugned SCN was issued on 21st September 2023 and even the reminder was issued on 5th December 2023, and the same does not appear to have come to the notice of the Petitioner. Under such circumstances, considering the fact that the Petitioner did not get a proper opportunity to be heard and no reply to the impugned SCN has been filed by the Petitioner, the matter deserves to be remanded back to the concerned Adjudicating Authority.
16. Further, Section 69 of the Indian Partnership Act, 1932 has an embargo on an un-registered firm from filing a suit or enforcement of a right. The same reads as under:
17. However, the exception to the said provision is set out in the following decisions: ● Haldiram Bhujiawala & Anr. v. Anand Kumar Deepak Kumar & Anr. [(2000)3 SCC 250]:
principles enunciated by this Court in the case of Raptakos Brett & Co. Ltd. v. Ganesh Property: (1998) 7 SCC 184, which have further been explained and applied by this Court in the cases of Haldiram Bhujiawala and Purushottam (supra). We may take note of the principles vividly exposited in the case of Haldiram Bhujiawala (supra) that to attract the bar of Section 69(2) of the Act of 1932, the contract in question must be the one entered into by firm with the third-party defendant and must also be the one entered into by the plaintiff firm in the course of its business dealings; and that Section 69(2) of the Act of 1932 is not a bar to a suit filed by an unregistered firm, if the same is for enforcement of a statutory right or a common law right.”
18. 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.
19. Accordingly, in view of the above stated observations, the impugned order is set aside. The Petitioner is granted time till 30th November 2025, to file the reply to impugned SCN. Upon filing of the reply, the Adjudicating Authority shall issue a notice for personal hearing to the Petitioner. The personal hearing notice shall be communicated to the Petitioner on the following mobile no. and e-mail address: ● Mobile No.: 9056299999 ● E-mail Address: abhishek@agslegal.com
20. The reply filed by the Petitioner to the impugned SCN along with the submissions made in the personal hearing proceedings shall be duly considered by the Adjudicating Authority, and fresh order with respect to the impugned SCN shall be passed accordingly.
21. However, it is made clear that the issue in respect of the validity of the impugned notifications is left open. Any order passed by the Adjudicating Authority shall be subject to the outcome of the decision of 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. and the decision of this Court in W.P. (C) 9214/2024 titled Engineers India Limited v. Union of India & Ors.
22. All rights and remedies of the parties are left open. Access to the GST Portal, shall be provided within one week to the Petitioner, to enable uploading of the reply, as also access to the notices and related documents.
23. The present writ petition is disposed of in above terms. All the pending applications, if any, are also disposed of PRATHIBA M. SINGH JUDGE SHAIL JAIN JUDGE OCTOBER 8, 2025/kk/sm