Full Text
HIGH COURT OF DELHI
Date of Decision: 28th August, 2025
53683/2025 KURLON RETAIL LIMITED .....Petitioner
Through: Mr. Manish Mishra, Ms. Joybrata Misra and Mr. Sameer Samal, Advs.
Through: Mr. Sumit K. Batra, Adv.
JUDGMENT
1. This hearing has been done through hybrid mode.
2. The present petition has been filed, inter alia, challenging the impugned order dated 21st August, 2024 passed in respect of Financial Year 2019-20 by the office of Sales Tax Officer Class II/ AVATO, Delhi, raising a demand of Rs. 31,58,436/- under the head of ‘net access ITC availed’. The petition also challenges the vires of Notification No. 56/2023-Central Tax dated 28th December, 2023 and Notification No. 56/2023-State Tax dated 7th July, 2024 (hereinafter ‘impugned notifications’).
3. The validity of the impugned notifications was under consideration before this Court in a batch of petitions with the lead petition being W.P.(C) 16499/2023 titled ‘DJST Traders Pvt. Ltd. vs. Union of India and Ors.’ 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:
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.”
4. Thereafter, on 23rd April 2025, this Court, having noted that the validity of the impugned notifications 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.
5. 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’.
6. In the present case, the submission of the Petitioner, on facts, is that the SCN dated 17th May, 2024, from which the impugned order arises, was uploaded on the ‘Additional Notices Tab’. Thereafter, reminders were issued to the Petitioner on 16th July, 2024 and 30th July, 2024 and the same are also stated to be uploaded on ‘Additional Notices Tab’. Therefore, the same was not brought to the knowledge of the Petitioner due to which no reply was filed. Hence, the impugned order was passed without providing the Petitioner with an opportunity to challenge the case on merits.
7. Further, it is submitted on behalf of the Department that the SCN dated 17th May, 2024, was uploaded after the issue with the ‘Additional Notices Tab’ was fixed and thus, the argument is not sustainable. Further, it is submitted that the opportunity for personal hearing was also afforded to the Petitioner. However, the same was not attended and thus, the impugned order was passed.
8. The Court has heard the parties. 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:
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.”
9. 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, the SCN was issued on 17th May, 2024. A perusal of the screenshot of the GST Portal of the Petitioner also clearly shows that the ‘Additional Notices Tab’ is clearly visible and accessible to the Petitioner. The same is extracted herein below:
10. Hence, the argument of the Petitioner pertaining to ‘Additional Notices Tab’ is not tenable in the present case. However, considering the fact that the impugned order was passed without hearing the submissions and contentions of the Petitioner and since the impugned notifications are under challenge before the Supreme Court, as also this Court, the Court deems it appropriate to set aside the impugned order.
11. Accordingly, the impugned order is set aside. The Petitioner is granted time till 30th September, 2025 to file the reply to the 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: ● Email: manish.mishra@jsalaw.com ● Mobile No.: 9818776660
12. 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 fresh orders with respect to both the SCNs shall be passed accordingly.
13. 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 of this Court in W.P.(C) 9214/2024 titled Engineers India Limited v. Union of India &Ors.
14. 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.
15. 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 AUGUST 28, 2025 dj/ss