Full Text
HIGH COURT OF DELHI
Date of Decision: 15th, September, 2025
MS SACH ENTERPRISES .....Petitioner
Through: Mr Vijay Gupta, Mr. Rahul Gupta, Mr. Harpreet Singh & Ms. Kajol Soni, Advs.
ORS & ANR. .....Respondents
Through: Ms. Urvi Mohan & Ms. Vaishali Gupta, Advs. For GNCTD
JUDGMENT
1. This hearing has been done through hybrid mode. CM APPL. 58136/2025 (for exemption)
2. Allowed, subject to all just exceptions. The application is disposed of.
3. The present petition has been filed by the Petitioner under Article 226 of the Constitution of India, inter alia, challenging the Show Cause Notice (hereinafter, ‘SCN’) dated 22nd May, 2024, as also the consequent order dated 28th August, 2024 (hereinafter, ‘impugned order’) passed by the Office of Sale Tax Officer Class II/AVATO, Delhi. Vide the impugned order, a demand of Rs.20,69,990/- has been raised qua the Petitioner.
4. Additionally, the present petition also challenges the vires of Notification Nos. 56/2023 – Central Tax dated 28th December, 2023 and 56/2023 – State Tax dated 11th July, 2024 (hereinafter, ‘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 msatter 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:
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:
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:
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 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 factual situation. All such orders are subject to further orders of the Supreme Court.
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 Supreme Court.
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, however, the SCN was issued to the Petitioner on 22nd May,
2024. A reminder was also issued to the Petitioner on 3rd August, 2024. Thereafter, an adjournment application dated 08th August, 2024 was filed by the Petitioner where the reasons given by the Petitioner are as under: “DUE TO SOME PEROSNAL ISSUES, WE WILL NOT BE ABLE TO ATTEND PERSONAL HEARING TODAY..
SO KINLDY ADJOURNED THE HEARING TO NEXT WEEK.”
10. The Court specifically notes that despite seeking an adjournment, the Petitioner chose not to file any reply to the SCN. The Petitioner chooses to only blame the GST Department on the ground that no second notice was given for personal hearing.
11. Though this Court is conscious of the fact that there is a challenge to the impugned notifications in the present case, the impugned order passed by the Adjudicating Authority cannot be faulted. The same is extracted under: “Whereas, SCN/DRC- [See rule 100(2) & 142(1)(a)] was issued to the taxpayer under Section 73 of CGST/DGST Act & Rules 2017; And whereas, in response to the DRC-01, the Taxpayer submitted his reply in DRC-06 and the reply of the registered person as well as data available on GST Portal has been checked/examined and the reply/submission or the taxpayer is not found to be satisfactory. Further, another opportunity to submit reply and for the sake of natural justice opportunity for Personal Hearing, as per provision of Section 75(4) DGST Act, was also provided to the taxpayer by issuing “REMINDER" through the GST portal. And whereas, further as per section 73(7) notice of tax and interest is to be given while soction 73(9) prescribed for imposition of penalty equivalent to 10% of tax or Rs. 10000/- whichever is higher. The penalty is consequently and mandatory as per Act. As such the registered person is liable to pay penalty equivalent to 10% of tax along with tax amount in each head already conveyed through SCN/ DRC-01. Now, since No further additional reply/explanation has been received from the taxpayer despite suficient and repeated opportunities, which indicate that the taxpayer has nothing to say in the matter. In view of aforesaid circumstances, the undersigned is left with no other option to create demand ex-parte, in accordance with the provisions of CGST/DGST act & rules Therefore the drc-07 bas been issued along with applicable interest as per discrepancies already conveyed through SCN/DRC- 01.”
12. Under these certain circumstances and in view of the challenge to the impugned notifications, the Petitioner is given an opportunity to file a reply and attend a personal hearing. However, considering the conduct of the Petitioner, the same shall be subject to the cost of Rs.10,000/-. Let the costs be deposited with the GST Department within two weeks.
13. Accordingly, the impugned order is set aside. The Petitioner is granted time till 31st October 2025, to file the reply to SCN. Upon filing of the reply, the Adjudicating Authority shall issue to the Petitioner, a notice for personal hearing. The personal hearing notice shall be communicated to the Petitioner on the following mobile no. and e-mail address: ● Email ID: rahulgupta219a@gmail.com ● Mobile No.: 9711953429
14. The reply filed by the Petitioner to the SCN along with the submissions made in the personal hearing proceedings shall be duly considered by the Adjudicating Authority and a fresh reasoned order with respect to the SCN shall be passed accordingly.
15. 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 this Court in W.P.(C) 9214/2024 titled ‘Engineers India Limited v. Union of India &Ors’.
16. All rights and remedies of the parties are left open. Access to the GST Portal, shall be provided to the Petitioner within one week to enable uploading of the reply as also access to the notices and related documents.
17. The petition is disposed of in these terms. All pending applications, if any, are also disposed of.
PRATHIBA M. SINGH JUDGE SHAIL JAIN JUDGE SEPTEMBER 15, 2025/pd/ck