Full Text
HIGH COURT OF DELHI
Date of Decision: 10th September, 2025
SIMLA HOLDINGS .....Petitioner
Through: Mr. Pradeep Singh Rawat & Mr. Girish Chandra, Advs. (M: 8424058557)
ROHINI, DELHI WEST AND ORS .....Respondents
Through: Ms. Monica Benjamin, SSC
JUDGMENT
1. This hearing has been done through hybrid mode.
2. The present petition filed under Article 226 of the Constitution of India, inter alia, challenging the order dated 16th June, 2023 passed by Respondent No. 1 (hereinafter, ‘impugned judgment’) by which a demand to the tune of Rs. 35,68,157/- was raised against the Petitioner for wrongful availment and utilization of Input Tax Credit (hereinafter, ‘ITC’).
3. The present petition was disposed of vide judgment dated 20th February, 2024 in the following terms:
that the order is not communicated to it. He submits that order is normally communicated by being uploaded on the common portal. Subject order has not been uploaded on the common portal. He further submits that since the petitioner is facing proceedings under the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act of 2002, office premises of the petitioner has been sealed and even physical copy of the order has not been received by it, if sent by the Department. He submits that this copy annexed to the petition was obtained from the office of the respondents, however, for the purposes of filing an appeal, the same would not constitute a valid service.
3. Issue notice. Mr. Harpreet Singh, learned Senior Standing Counsel, accepts notice. He raises a preliminary objection with regard to the maintainability of the subject petition and submits that petitioner has a remedy of filing an appeal.
4. In view of the said objection, this petition is disposed of directing the respondents to upload order dated 16.06.2023 on the common portal. On said order being uploaded, it would be open to the petitioner to avail of the alternative remedy of filing an appeal in accordance with law. For the purposes of limitation, the date when the order is uploaded on the common portal shall be treated as the date of commencement of period of limitation for the purposes of filing the appeal.
5. Petition is disposed of in above terms. It is clarified that this Court has neither considered nor commented on the merits of contentions raised by either party.
6. All rights and contentions of the patties are reserved.”
4. A review was preferred by the Respondent No. 1 qua this judgment dated 20th February, 2024 on the ground that the Petitioner had concealed that a physical copy of the order dated 16th June, 2023 was in fact served upon the Petitioner on 17th August, 2023. Thus, in the review petition, on 29th April, 2024, the previous judgment dated 20th February, 2024 was recalled and the petition was restored to its original number. The relevant portions of this order are set below: “REVIEW PET. 190/2024
6. Review petitioner seeks review of judgment dated 20.02.2024. It is contended that though the petitioner had stated that petitioner had obtained a physical copy of the order from the office of the respondent, however, petitioner failed to state the date of receipt of the order. He submits that the physical copy of the order was received by the petitioner on 17.08.2023 and limitation for filing an appeal in terms of Section 107 of the Central Goods and Services Tax Act, 2017 (hereinafter referred to as the Act) is three months and condonable by a further period of one month for the reasons to be shown. He submits that petitioner failed to file an appeal and subject petition was filed in the Registry on 17.02.2024 beyond the period of three months and condonable period of one month and this fact could not be brought to the notice of the Court at the time when order dated 20.02.2024 was passed.
7. Learned counsel for the respondent submits that in terms of Section 169 of the Act uploading on the common portal is one of the modes of the communication of the notice/orders and Section 169 (1) (a) stipulates that tendering of copy of the order physically as one of the modes of service.
8. Issue notice. Notice is accepted by learned counsel appearing for the petitioner.
9. Learned counsel for the petitioner submits that apart from the fact that petitioner was not aware of the order, there were other causes which constitute sufficient cause for not filing an appeal within the period of limitation, one of them being that petitioner is facing proceedings under the Securitization and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 and the office premises of the petitioner had been sealed. He accordingly seeks leave to file an appropriate application to place on record the reasons for the delay in filing an appeal and approaching this court belately.
10. In view of the above, the impugned judgment dated 20.02.2024 is recalled. The petition is restored to its own original number.”
5. Ms. Benjamin, ld. SSC appearing on behalf of the Respondent - CGST Department vehemently opposes the present writ on the ground that the Petitioner has approached this Court belatedly and has also not come to the Court with clean hands as it failed to disclose that the physical copy of the order was received on 17th August, 2023.
6. On the other hand, ld. Counsel for the Petitioner submits that the fact that the copy was obtained by the Petitioner from the office of the Respondents is not concealed from the Court as per the order dated 20th February, 2024. The relevant portion of the said order which the Petitioner relies on is extracted below for ready reference: “2. Learned counsel for the petitioner submits that petitioner is constrained to file an appeal for the reason that the order is not communicated to it. He submits that order is normally communicated by being uploaded on the common portal. Subject order has not been uploaded on the common portal. He further submits that since the petitioner is facing proceedings under the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act of 2002, office premises of the petitioner has been sealed and even physical copy of the order has not been received by it, if sent by the Department. He submits that this copy annexed to the petition was obtained from the office of the respondents, however, for the purposes of filing an appeal, the same would not constitute a valid service.”
7. It is thus submitted on behalf of the Petitioner, that there was never an intention of the Petitioner to conceal the fact but in terms of Rule 142 of the Central Good and Service Tax Rules, 2017 (hereinafter, ‘CGST Rules’), the order ought to have been uploaded on the portal.
8. Heard. There can be no doubt that all communications, orders and notices can be served upon the parties in any of the prescribed modes of service and issued in terms of Section 169 of the Central Good and Service Tax Act, 2017 (hereinafter, ‘CGST Act’). For ready reference the said section has been extracted below:
9. Usually, all the relevant documents are uploaded including the orders on the GST portal. However, for some reason, in this case, the uploading of the order had not happened and therefore, on 20th February, 2024, the Court disposed of the writ petition with a direction that the same be uploaded on the portal. The Court concurs, however, with the Respondent Department’s submission that the Petitioner had a duty to categorically state that it had received a physical copy of the order which unfortunately, it had failed to do so. Thus, the review petition came to be allowed on this ground.
10. The Petitioner is seeking its right to appeal in respect of the impugned order dated 16th June, 2023. In the facts and circumstances of this case where the initial order was given physically to the Petitioner, the appeal could have been filed well within the time prescribed, however, the Petitioner chose not to do so. Instead, it approached this Court by way of the present writ petition, alleging that the impugned order had not been uploaded, thereby suggesting that it did not possess a copy of the same which is contrary to the true facts.
11. The judgment dated 20th February, 2024 already stands recalled. Today, the Petitioner is primarily seeking liberty to file an appeal in respect of order dated 16th June, 2023. There is no challenge to the Notification No.9/2023- Central Tax dated 31st March, 2023 in this case, however, today the Petitioner seeks to present an application for raising a challenge to the said notification.
12. It is a matter of which judicial notice can be taken of, that Notification No.9/2023-Central Tax dated 31st March, 2023 is under challenge 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. Considering that the validity of the said notification itself has not yet been adjudicated, the Court is inclined to give permission to the Petitioner to file an appeal challenging the impugned order dated 16th June, 2023, as has been done in similar cases.
13. Considering the fact that the service of the physical copy had not been candidly disclosed to the Court and the writ petition was filed on the basis that the order was not served upon the Petitioner, the Court has already recalled the said judgment dated 20th February, 2024 and has restored the present petition.
14. In view of the above, this Court is of the opinion that while permitting the Petitioner to file an appeal challenging the impugned order along with the requisite pre-deposit, the Petitioner ought to be saddled with some costs.
15. Accordingly, the Petitioner is given opportunity to file an appeal by 31st October, 2025 before the Appellate Authority challenging the order dated 16th June, 2023 along with the requisite pre-deposit. The above is subject to payment of Rs. 50,000/- as costs by the Petitioner to the DHCBA Natural Calamities Relief Fund. The details of the said fund is as under: ● Account Name: DHCBA Natural Calamities Relief Fund. ● UCO Bank Account No.: 15530110174395 ● IFSC Code: UCBA0001553 ● Branch Address: Delhi High Court
16. The said costs shall be deposited within one week and the appeal shall thereafter be filed by 31st October, 2025.
17. The proceedings and the order passed by the Appellate Authority shall be, however, subject to the judgment 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.
18. If the above two conditions are fulfilled, the appeal shall be heard on merits and shall not be dismissed on the ground of limitation.
19. The petition is disposed of in these terms. Pending applications, if any, are also disposed of.