Disposed

Verto Bizserv v. Govt of NCT of Delhi & Ors.

Delhi HC14 May 2025W.P.(C)/6359/2025

Case brief

AI extract

What is this about?

A writ petition challenged a GST show cause notice and the consequent adjudication order for FY 2018-19 as unsigned, untimely and ex parte, along with the vires of GST extension notifications. The High Court set aside the non-reasoned order for want of natural justice, granted a fresh reply and hearing opportunity, and left the notification-vires question open pending the Supreme Court.

What did the court decide?

Impugned order set aside; time till 10 July 2025 to file reply to SCN; personal hearing notice to be issued; fresh order to be passed subject to Supreme Court SLP 4240/2025 and W.P.(C) 9214/2024 outco

Verto Bizserv Vs Govt of NCT of Delhi & Ors. — GST and Indirect Tax | Delhi HC (2025)

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$~26 * IN THE HIGH COURT OF DELHI AT NEW DELHI Date of decision: 14^th May, 2025

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- W.P.(C) 6359/2025 & CM APPL. 28984/2025 VERTO BIZSERV .....Petitioner

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Through: Mr. Akshay Allagh and Mr. Syed Ahmed Alamdar Rizvi, Advocates.

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versus

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GOVT OF NCT OF DELHI & ORS. .....Respondents Through: Mr. Sumit K Batra, Advocate 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 under Article 226 of the Constitution of India challenging the Show Cause Notice dated 28th May, 2024 (hereinafter, ‘impugned SCN’ ) issued by the Department of Trade & Taxes, Government of N.C.T. of Delhi, pertaining to the Financial Year 2018-19, as also the consequent order dated 29^th 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. 56/2023Central Tax dated 28th December, 2023 and Notification No. 9/2023Central Tax dated 31st March, 2023 as also Notification No. 56/2023- State Tax dated 11th July, 2024 and Notification No. 9/2023-State Tax dated 22^nd June (hereinafter ‘impugned notifications’).

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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)

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Signature Not Verified

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W.P.(C) 6359/2025

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Page 1 of 8

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Signed By:NAMITA DHYANI Signing Da te:1 7.05.2025 17:51:20

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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 notification 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 4240/2025 titled M/s HCCSEW-MEIL-AAG JV v. Assistant Commissioner of State

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Signature Not Verified

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W.P.(C) 6359/2025

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Page 2 of 8

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Signed By:NAMITA DHYANI Signing Da te:1 7.05.2025 17:51:20

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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 the said order reads as under:

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Signature Not Verified

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W.P.(C) 6359/2025

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Page 3 of 8

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Signed By:NAMITA DHYANI Signing Da te:1 7.05.2025 17:51:20

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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. 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 have been imposed.

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10. Broadly, there are six categories of cases which

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Signature Not Verified

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Signed By:NAMITA W.P.(C) 6359/2025 DHYANI Signing Da te:1 7.05.2025 17:51:20

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Page 4 of 8

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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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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.

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In the present case, the submission of the Petitioner, on facts, is that the impugned order is cryptic and non-reasoned. Further it is also submitted that the Petitioner did not file the reply to the impugned SCN and neither availed the opportunity for personal hearing on the account of the impugned SCN

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Signature Not Verified

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W.P.(C) 6359/2025

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Page 5 of 8

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Signed By:NAMITA DHYANI Signing Da te:1 7.05.2025 17:51:20

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(i) being unsigned and

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(ii) being issued beyond the period of limitation.

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In view thereof, impugned order, according to the Petitioner, is in violation of Principles of Natural Justice and thus, is liable to be set aside. 8. Heard. The Court has perused the records. The relevant portions of reasoning provided in the impugned order is extracted below:

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“Reconciliation of GSTR-01 with GSTR-3B : Observations and conclusion of the assessing authority :

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Agreed with SCN amount

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Specific reasons entered

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And whereas tax payer has been issued DRC-01 for the FY-201920 and it is noticed that the Taxpayer neither filed reply/explanation within stipulated period nor appeared for Personal Hearing before Proper Officer on the given date and time.

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*********

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Excess ITC availed in GSTR-3B compared to the tax on inward supplies declared by the suppliers:

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Observations and conclusion of the assessing authority : Agreed with SCN amount Specific reasons entered

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*********

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ITC to be reversed on non-business transactions & exempt supplies: Observations and conclusion of the assessing authority :

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Agreed with SCN amount Specific reasons entered

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And whereas tax payer has been issued DRC-01 for the FY-201920 and it is noticed that the Taxpayer neither filed

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Signature Not Verified

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Signed By:NAMITA W.P.(C) 6359/2025 DHYANI Signing Da te:1 7.05.2025 17:51:20

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Page 6 of 8

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reply/explanation within stipulated period nor appeared for Personal Hearing before Proper Officer on the given date and time.

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*********

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Under declaration of Ineligible ITC: Observations and conclusion of the assessing authority : Agreed with SCN amount Specific reasons entered

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*********

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ITC claimed from cancelled dealers, return defaulters & tax non payers:

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Observations and conclusion of the assessing authority : Agree with SCN amount Specific reasons entered

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A perusal of the above extraction reveals that the impugned order has been passed without providing the Petitioner an opportunity to present its case on merits. Considering the above submissions, and the fact that the challenge to the validity of impugned notifications are under consideration before the Supreme Court, this Court is inclined to provide the Petitioner another opportunity to file a reply and be heard on merits.

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Accordingly, the impugned order is set aside. The Petitioner is granted time till 10th July 2025, to file the reply to impugned SCN. Upon filing of the reply, the Adjudicating Authority shall issue a notice for personal hearing to

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Signature Not Verified

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W.P.(C) 6359/2025

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Page 7 of 8

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Signed By:NAMITA DHYANI Signing Da te:1 7.05.2025 17:51:20

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the Petitioner. The personal hearing notice shall be communicated to the Petitioner on the following mobile no. and e-mail address:

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Email ID: [email protected]

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Mobile: 8459430776

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The reply filed by the Petitioner to the SCN along with the submissions made in the personal hearing shall be duly considered by the Adjudicating Authority and a fresh order shall be passed.

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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. and of this Court in W.P.(C) 9214/2024 titled Engineers India Limited v. Union of India &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 the reply as also access to the notices and related documents.

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