Disposed

M/S Keshav Metals through Propriter Shri Sunil Khandelwal v. Commissioner of Delhi Goods and Services Tax and Ors.

Delhi HC1 May 2025W.P.(C)/5741/2025

Case brief

AI extract

What is this about?

A taxpayer challenged a GST demand order raised without its receiving the show cause notice or any personal hearing, along with Notification No. 56/2023 (State Tax). Following earlier Delhi High Court orders on SCNs uploaded to the 'Additional Notices Tab', the court set aside the impugned order, allowed a fresh reply and hearing, and left the notification's validity to the pending Supreme Court S

What did the court decide?

Impugned order set aside; reply permitted within 30 days; personal hearing to be given via specified email; fresh adjudication on merits, subject to Supreme Court outcome.

M/S Keshav Metals through Propriter Shri Sunil Khandelwal… — GST and Indirect Tax | Delhi HC (2025)

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$~88

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* IN THE HIGH COURT OF DELHI AT NEW DELHI

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Date of Decision: 01^st May, 2025

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W.P.(C) 5741/2025

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M/S KESHAV METALS THROUGH PROPRIETOR SHRI SUNIL KHANDELWAL .....Petitioner Through: Mr Vijay Gupta and Mr Rahul Gupta, Advocates.

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versus

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COMMISSIONER OF DELHI GOODS AND SERVICES TAX AND ORS .....Respondents Through: Ms. Vaishali Gupta, Advocate.

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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. CM APPL. 26178/2025(for exemption)

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Allowed, subject to all just exceptions. Application is disposed of.

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W.P.(C) 5741/2025

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The present petition has been filed by the Petitioner – M/s Keshav Metals through proprietor Shri Sunil Khandelwal under Article 226 of the Constitution of India challenging the order dated 11^th August, 2024 (hereinafter ‘impugned order’ ) arising pursuant to show cause notice dated 21^st May, 2024 (hereinafter ‘SCN’ ) by which demand has been raised to the tune of Rs. 1,35,99,517/- (Rs. 66,23,407/- for the SGST + Rs. 66,23,407/- for the CGST + Rs. 352703/- for IGST).

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Signature Not Verified

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Signed By:NAMITA DHYANI Signing Da te:0 6.05.2025 16:53:45

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Page 1 of 8

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W.P.(C) 5741/2025

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The case of the Petitioner is that the SCN is undated and was not received by the Petitioner. It is also not properly signed. The Petitioner vide the present petition also raises a challenge to Notification No. 56/2023 State Tax ( hereinafter , ‘the impugned notification’).

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The impugned notification has also been challenged in a batch of petitions. The W.P.(C) No. 16499/2023 titled DJST Traders Private Limited v. Union of India & Ors. is the lead matter in the said batch of petitions. On the last date of hearing i.e ., 22rd 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

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Signature Not Verified

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Signed By:NAMITA DHYANI Signing Da te:0 6.05.2025 16:53:45

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Page 2 of 8

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W.P.(C) 5741/2025

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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 4240/2025 titled M/s HCCSEW-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

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Signature Not Verified

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Signed By:NAMITA DHYANI Signing Da te:0 6.05.2025 16:53:45

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Page 3 of 8

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W.P.(C) 5741/2025

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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 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. 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. 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,

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Signature Not Verified

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Signed By:NAMITA DHYANI Signing Da te:0 6.05.2025 16:53:45

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Page 4 of 8

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W.P.(C) 5741/2025

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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.

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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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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 notification in the present proceedings shall also be subject to the outcome of the decision of the Supreme Court.

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On facts, however, the submission of the Petitioner is that the SCN dated 21^st May, 2024, from which the impugned order arises, was uploaded on the ‘Additional Notices Tab’ - therefore, the same did not come to the

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Signature Not Verified

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Signed By:NAMITA DHYANI Signing Da te:0 6.05.2025 16:53:45

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Page 5 of 8

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W.P.(C) 5741/2025

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knowledge of the Petitioner. The impugned order dated 11^th August, 2024 was passed without providing the Petitioner a personal hearing and in the absence of a reply on behalf of the Petitioner.

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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 vide ‘Additional Notices Tab’ had remanded the matter in the following terms:

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“6. Be that as it may, intention is to ensure that the Petitioner is given an opportunity to file its reply and is heard on merits and that orders are not passed in default. Since there is no clarity on behalf of the Department, this Court follows the order dated 9^th September, 2024 in Satish Chand Mittal (Trade Name National Rubber Products) vs. Sales Tax Officer SGST, Ward 25-Zone 1 (W.P.(C) 12589/2024; DHC) as also order dated 23rd December, 2024 in Anant Wire Industries vs. Sales Tax Officers Class II/Avato, Ward 83 & Anr (W.P.(C) 17867/2024; DHC) where the Court under similar circumstances has remanded back the matter to ensure the Noticee/Petitioners get a fair opportunity to be heard. The order of the Court in Sathish Chand Mittal (Supra) reads as under:

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“4. It is the petitioner’s case that he had not received the impugned SCN and, therefore, he had no opportunity to respond to the same. For the same reason, the petitioner claims that he had not appear for a personal hearing before the Adjudicating Authority, which was scheduled on 17.10.2023 and later rescheduled to 30.11.2023 as per the Reminder.

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5. The petitioner also states that the impugned SCN, the Reminder and the impugned order are unsigned.

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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

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Signature Not Verified

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Signed By:NAMITA DHYANI Signing Da te:0 6.05.2025 16:53:45

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Page 6 of 8

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W.P.(C) 5741/2025

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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.

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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.

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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.

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10. The present petition is disposed of in the aforesaid terms.

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11. All pending applications are also disposed of.”

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7. The impugned demand orders dated 23^rd April, 2024 and 5th December, 2023 are accordingly set aside. In response to show cause notices dated 04^th 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.

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8. The petitions are disposed of in the above terms. The pending application(s), if any, also stand disposed of.”

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It is relevant to note that post 16^th January 2024, the Department has effected changes in the portal to ensure that the SCNs become visible to parties. Though the SCN in the present case is of May 2024, considering the Petitioner has not been afforded an opportunity to file a reply or given a

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Signature Not Verified

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Signed By:NAMITA DHYANI Signing Da te:0 6.05.2025 16:53:45

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Page 7 of 8

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W.P.(C) 5741/2025

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personal hearing, following the above decision in W.P.(C) 13727/2024, the impugned order is set aside.

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Let the reply be filed by the Petitioner within 30 days. Thereafter the Petitioner shall be also given a personal hearing and the notice for personal hearing shall be sent to the Petitioner on the following email ID:

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E-mail Address : [email protected]

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Let the entire matter be considered afresh and an order be passed on merits after duly considering the reply and the submissions made by the Petitioner in the personal hearing.

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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.

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The present writ petition is disposed of in above terms. All the pending applications, if any, are also disposed of.

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PRATHIBA M. SINGH JUDGE

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RAJNEESH KUMAR GUPTA JUDGE

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MAY 1, 2025/ da/Ar.

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Signature Not Verified

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Signed By:NAMITA DHYANI Signing Da te:0 6.05.2025 16:53:45

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Page 8 of 8

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W.P.(C) 5741/2025

M/S Keshav Metals through Propriter Shri Sunil Khandelwal v. Commissioner of Delhi Goods and Services Tax and Ors.

Case brief

What is this about?

What did the court decide?

M/S Keshav Metals through Propriter Shri Sunil Khandelwal v. Commissioner of Delhi Goods and Services Tax and Ors.

Case brief

What is this about?

What did the court decide?

What the court decided

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