Full Text
HIGH COURT OF DELHI
Date of Decision: 2nd September, 2025
55129/2025 ALKA ENTERPRISES .....Petitioner
Through: Mr. P.C Patnaik, Mr. Devender Kumar, Mr. Hemant Mishra & Mr. Dillip Nayak, Advs. (M: 98103 58384)
Through: Mr. Sumit K. Batra, Advocate for GNCTD. (M: 9911211000)
Prathiba M. Singh, J. (Oral)
JUDGMENT
1. This hearing has been done through hybrid mode. CM APPL.55128/2025 (for exemption)
2. Allowed, subject to all just exceptions. Application is disposed of. W.P.(C) 13432/2025 & CM APPL. 55129/2025 (for stay), CM APPL. ________/2025 (TO BE NUMBERED)
3. The present petition has been filed by the Petitioner – Alka Enterprises under Articles 226 and 227 of the Constitution of India, inter alia, challenging the impugned assessment orders dated 27th April, 2024 and 29th August, 2024 in respect of financial years 2018-19 and 2019-20 respectively. The demands raised vide these orders are as under: Assessment order dated 27th April, 2024 Assessment orders dated 29th August, 2024
4. These orders arise out of the Show Cause Notices (hereinafter, ‘SCNs’) dated 21st May, 2024 and 30th November, 2023. The same have been issued on the following grounds.
1. Under declaration of output tax ● The tax on outward supplies under declared on reconciliation of data in GSTR-09:
2. Excess claim of ITC ● The excess input tax (ITC) claimed on account of nonreconciliation of information ● ITC claimed from cancelled dealers, return defaulters & tax non payers:
5. Both SCNs have been issued within the extended period as contemplated under the following notifications: ● Notification No.56/2023-Central Tax dated 28th December, 2023, ● Notification No. 56/2023-State Tax dated 11th July, 2024, ● Notification No.09/2023-Central Tax dated 31st March, 2023, and ● Notification No. 09/2023-State Tax dated 22nd June, 2023 (hereinafter, ‘impugned notifications’)
6. Though the Petitioner does not challenge the validity of the said notifications, it is a matter on record that these notifications are under the 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. On the oral prayer of the Petitioner, the challenge to the impugned notifications is also taken on record. An application for the same has been filed by the Petitioner. Amended prayer being sought by the Petitioner is extracted below:
“II. Issue a Writ, Order or Direction in the nature of Certiorari and/or any other appropriate Writ, Order or Direction, thereby declaring the Notification No.9/2023-Central Tax dated 31st March, 2023, Notification No.56/2023-Central Tax dated 28th December, 2023 and Notification No.56/2023- State Tax Dated 11th July, 2024 as ultra vires to the CGST/DGST Act, 2017 & thus Invalid;”
7. Accordingly, the application moved by the Petitioner for taking amended prayer on record is disposed of.
8. Ld. Counsel for the Petitioner submits that the Chartered Accountant of the Petitioner had undergone cardiac surgery and, therefore, the SCNs could not be replied to by the Petitioner. Neither personal hearing was attended by the Petitioner.
9. A perusal of the SCNs would show that the opportunity was granted to the Petitioner to file a reply and personal hearing notice was also served upon the Petitioner. However, one of the notices was also uploaded on ‘Additional Notices Tab’.
10. The Court has heard the parties. 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:
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:
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:
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.”
11. 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 in S.L.P. NO. 4240/2025 titled M/s HCC-SEW-MEIL-AAG JV v. Assistant Commissioner of State Tax & Ors.
12. 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.
13. 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:
6. Mr. Singhvi, the learned counsel appearing for the respondent, on advance notice,fairly states that the principal issue involved in the present case is squarely covered by the decisions of this Court in M/s ACE Cardiopathy Solutions Private Ltd. v. Union of India & Ors.: Neutral Citation No. 2024:DHC:4108-DB as well as in Kamla Vohra v. Sales Tax Officer Class II/ Avato Ward 52: Neutral Citation No.2024:DHC:5108- DB.
7. He states that possibly, the petitioner did not had the access of the Notices as they were projected on the GST Portal under the tab ‘Additional Notices & Orders’. He submits that the said issue has now been addressed and the ‘Additional Notices & Orders’ tab is placed under the general menu and adjacent to the tab ‘Notices & Orders’.
8. In view of the above, the present petition is allowed and the impugned order is set aside.
9. The respondent is granted another opportunity to reply to the impugned SCN within a period of two weeks from date. The Adjudicating Authority shall consider the 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.”
14. Under such circumstances, considering the fact that the Petitioner did not get a proper opportunity to be heard and no reply to the SCNs has been filed by the Petitioner, the matter deserves to be remanded back to the concerned Adjudicating Authority.
15. Accordingly, the impugned order is set aside. The Petitioner is granted time till 15th October, 2025, to file the reply to SCNs. 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 ID: pcpattnaik@rediffmail.com ● Mobile: 9810358384
16. The reply filed by the Petitioner to the SCNs along with the submissions made in the personal hearing proceedings shall be duly considered by the Adjudicating Authority and a fresh order with respect to the SCN shall be passed accordingly.
17. 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.
18. The Court has not considered the merits and contentions of both the parties. 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.
19. The present writ petition is disposed of in above terms. All the pending applications, if any, are also disposed of.
PRATHIBA M. SINGH JUDGE ANISH DAYAL JUDGE SEPTEMBER 2, 2025/dk/ck