Disposed

Jm Traders through Proprietor Shivam Bansal v. Union of India & Ors.

Delhi HC6 May 2025W.P.(C)/14937/2024

Case brief

AI extract

What is this about?

Petitioner challenged a GST show cause notice, adjudication order for FY 2019-20 and the vires of Notifications 9/2023 and 56/2023-Central Tax. Finding the order was passed without personal hearing or consideration of the reply, the Court set it aside and directed fresh adjudication after a hearing, leaving notification validity open subject to a pending Supreme Court case.

What did the court decide?

Impugned order set aside; personal hearing notice by 10 July 2025; reply dated 21 June 2024 to be considered; fresh SCN order per law; GST portal access restored; rights open.

Jm Traders through Proprietor Shivam Bansal Vs Union of… — GST and Indirect Tax | Delhi HC (2025)

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$~91

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IN THEHIGH COURTOF DELHIAT NEW DELHI Date of decision: 06^th May, 2025

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- W.P.(C) 14937/2024 & CM APPL. 62651/2024

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JM TRADERS THROUGH PROPRIETOR SHIVAM BANSAL .....Petitioner

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Through: Mr. Prabhat Kumar and Mr. Utkarsh Kumar, Advs. (M:9312315121) versus UNION OF INDIA & ORS. .....Respondents Through: Mr. K.G. Gopalakrishnan, Mr. Sumit K. Batra and Ms. Nisha Mohandas, Advs. for GNCTD.

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CORAM: JUSTICE PRATHIBA M. SINGH JUSTICE RAJNEESH KUMAR GUPTA

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Prathiba M. Singh, J. (Oral)

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This hearing has been done through hybrid mode.

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The present petition has been filed by the Petitioner– JM Traders under Articles 226 & 227 of the Constitution of India challenging the show cause notice dated 28th May, 2024 (hereinafter, ‘the SCN’ ) issued by the Additional Commissioner, CGST, Delhi West, pertaining to the Financial Year 2019-20, as also the consequent order dated 28th August, 2024 passed by the office of Sales Tax Officer Class II/ AVATO, Delhi (hereinafter, ‘the impugned order.’ )

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The petition also challenges the vires of Notification No. 9/2023Central Tax dated 31st March, 2023 and Notification No. 56/2023- Central Tax dated 28th December, 2023 (hereinafter ‘impugned notifications’).

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The impugned notifications were under consideration before this Court in a batch of petitions with the lead petition being W.P.(C) 16499/2023 titled

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Page 1 of 7

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W.P.(C) 14937/2024

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Signature Not Verified

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Signed By:RAHUL Signing Date:16.05.2025 15:20:33

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‘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:

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“4. Submissions have been heard in part. The broad challenge to both sets of Notifications is on the ground that the proper procedure was not followed prior to the issuance of the same. In terms of Section 168A, prior recommendation of the GST Council is essential for extending deadlines. In respect of Notification no.9, the recommendation was made prior to the issuance of the same. However, insofar as Notification No. 56/2023 (Central Tax) the challenge is that the extension was granted contrary to the mandate under Section 168A of the Central Goods and Services Tax Act, 2017 and ratification was given subsequent to the issuance of the notification. The notification incorrectly states that it was on the recommendation of the GST Council. Insofar as the Notification No. 56 of 2023 (State Tax) is concerned, the challenge is to the effect that the same was issued on 11th July, 2024 after the expiry of the limitation in terms of the Notification No.13 of 2022 (State Tax).

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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).

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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

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Page 2 of 7

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W.P.(C) 14937/2024

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Signature Not Verified

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Signed By:RAHUL Signing Date:16.05.2025 15:20:33

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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:

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“1. The subject matter of challenge before the High Court was to the legality, validity and propriety of the Notification No.13/2022 dated 5-7-2022 & Notification Nos.9 and 56 of 2023 dated 31-3-2023 & 8-12-2023 respectively.

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2. However, in the present petition, we are concerned with Notification Nos.9 & 56/2023 dated 31-3-2023 respectively.

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3. These Notifications have been issued in the purported exercise of power under Section 168 (A) of the Central Goods and Services Tax Act. 2017 (for short, the "GST Act").

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4. We have heard Dr. S. Muralidhar, the learned Senior counsel appearing for the petitioner.

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5. The issue that falls for the consideration of this Court is whether the time limit for adjudication of show cause notice and passing order under Section 73 of the GST Act and SGST Act (Telangana GST Act) for financial year 2019-2020 could have been extended by issuing the Notifications in question under Section 168-A of the GST Act.

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6. There are many other issues also arising for consideration in this matter.

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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 7-32025.”

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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

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Page 3 of 7

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W.P.(C) 14937/2024

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Signature Not Verified

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Signed By:RAHUL Signing Date:16.05.2025 15:20:33

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the said order reads as under:

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“65. Almost all the issues, which have been raised before us in these present connected cases and have been noticed hereinabove, are the subject matter of the Hon'ble Supreme Court in the aforesaid SLP.

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66. Keeping in view the judicial discipline, we refrain from giving our opinion with respect to the vires of Section 168-A of the Act as well as the notifications issued in purported exercise of power under Section 168-A of the Act which have been challenged, and we direct that all these present connected cases shall be governed by the judgment passed by the Hon'ble Supreme Court and the decision thereto shall be binding on these cases too.

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67. Since the matter is pending before the Hon'ble Supreme Court, the interim order passed in the present cases, would continue to operate and would be governed by the final adjudication by the Supreme Court on the issues in the aforesaid SLP4240-2025.

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68. In view of the aforesaid, all these connected cases are disposed of accordingly along with pending applications, if any.”

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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.

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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

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W.P.(C) 14937/2024

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Signature Not Verified

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Signed By:RAHUL Signing Date:16.05.2025 15:20:33

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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.

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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.”

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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.

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In the present case, the submission of the Petitioner, on facts, is that a reply dated 21st June, 2024, along with supporting documents was filed by the Petitioner to the SCN dated 28th May, 2024.

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However, it is stated that no personal hearing notice was issued to the Petitioner and the impugned order was passed without affording the Petitioner with an opportunity to be heard.

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It is further submitted that the Goods & Services Tax Identification

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W.P.(C) 14937/2024

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Signature Not Verified

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Signed By:RAHUL Signing Date:16.05.2025 15:20:33

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Number (hereinafter, ‘GSTIN’) Registration of the Petitioner stood retrospectively cancelled from 29^th November, 2018 vide an order for cancellation of registration dated 14th March, 2023. Hence, the impugned order is a non-speaking order and is liable to be set aside on the said ground.

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Heard. The Court has considered the submissions made. 10. A perusal of the impugned order reveals that the date fixed for personal hearing of the Petitioner is 28th August, 2024 which is the same as the date on which the impugned order has been passed. Further, the relevant portion of the impugned order reads as under:

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“Observations and conclusion of the assessing authority: Not Agreed with Tax Payer Specific reasons entered Despite opportunities for personal hearing including notice under section 75(4) of the CGST/DGST Act and Rules, the taxpayer has not appeared till date. The taxpayer has only submitted online reply and the reply filed by the taxpayer is neither proper nor satisfactory. No satisfactory reply/explanation has been received from the taxpayer despite adequate and repeated opportunities being given. Hence demand created accordingly.”

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A reading of the impugned order makes it clear that the same has been passed in a mechanical manner without duly considering the reply of the Petitioner or affording the Petitioner with an opportunity to be heard.

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This Court is of the opinion that since the Petitioner has not been afforded an opportunity to be heard and the said SCN and the consequent impugned order have been passed without hearing the Petitioner, an opportunity ought to be afforded to the Petitioner to contest the matter on merits.

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Page 6 of 7

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W.P.(C) 14937/2024

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Signature Not Verified

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Signed By:RAHUL Signing Date:16.05.2025 15:20:33

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Accordingly, the impugned order is set aside. The Adjudicating Authority shall issue to the Petitioner, a notice for personal hearing. The personal hearing notice shall be communicated to the Petitioner by 10th July, 2025, on the following mobile no. and e-mail address:

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Mobile No.: 9312315121

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E-mail Address : [email protected]

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The reply dated 21st June, 2024, 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 order with respect to the SCN shall be passed in accordance with law.

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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.

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All rights and remedies of the parties are left open. Access to the GST Portal shall be provided to the Petitioner to enable uploading of necessary documents, if any, as also to access the notices and related documents.

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