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2025 (5) TMI 1208 - HC - GSTExtension of time limit of issuance of SCN u/s 73 / 74 - Validity and vires of Notification No. 56/2023-Central Tax and Notification No. 09/2023-Central Tax - procedural requirements under Section 168A for prior to the issuance of notifications - No knowledge of the issuance of SCN - Challenging the SCN and impugned order - HELD THAT - There is no doubt that after 16th January 2024 changes have been made to the GST portal and the Additional Notices Tab has been made visible. However in the present case since the SCNs were issued on 24th December 2023 the same were uploaded on the Additional Notices Tab . Thus 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 to the concerned Adjudicating Authority. Accordingly the impugned order is set aside. The Petitioner is granted time till 10th July 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 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 fresh order with respect to the SCNs shall be passed accordingly. 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 M/s HCC-SEW-MEIL-AAG JV v. Assistant Commissioner of State Tax Ors. 2025 (4) TMI 60 - SC ORDER . 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. The present writ petition is disposed of in above terms.
1. ISSUES PRESENTED and CONSIDERED
- Whether the show cause notices (SCNs) dated 24th December, 2023 and consequent orders passed by the Sales Tax Officer for the financial year 2018-19 are valid and maintainable. - Whether Notification No. 56/2023-Central Tax dated 28th December, 2023 and Notification No. 09/2023-Central Tax dated 31st March, 2023 (the impugned notifications), issued under Section 168A of the Central Goods and Services Tax Act, 2017 (GST Act), are valid and lawful. - Whether the procedure prescribed under Section 168A of the GST Act, including prior recommendation of the GST Council, was followed before issuance of the impugned notifications extending the time limits for adjudication of show cause notices and passing of orders. - Whether the Petitioner was afforded a fair opportunity of hearing, including proper knowledge of the SCNs and reminders, given that these were uploaded on the 'Additional Notices Tab' of the GST portal, which was not readily accessible or known to the Petitioner at the relevant time. - The effect of various High Courts' conflicting decisions on the validity of the impugned notifications and the impact of the pending Supreme Court proceedings on the present case. - Whether the impugned orders passed ex-parte without the Petitioner's knowledge and opportunity to respond are liable to be set aside and remanded for fresh adjudication. 2. ISSUE-WISE DETAILED ANALYSIS Validity of the Impugned Notifications under Section 168A of the GST Act The impugned notifications purportedly extend the time limits for adjudication under Section 73 of the GST Act for the financial year 2018-19. The Petitioner challenged their vires on the ground that the proper procedure, including prior recommendation of the GST Council, was not followed, and that some notifications were issued after expiry of the limitation period. The Court noted that this issue has been extensively litigated before various High Courts with divergent views: the Allahabad and Patna High Courts upheld the notifications' validity, while the Guwahati High Court quashed Notification No. 56 of 2023 (Central Tax). The Telangana High Court made observations questioning the validity of Notification No. 56 of 2023, and this judgment is presently under Supreme Court consideration in S.L.P No. 4240/2025. The Supreme Court has issued notice and is examining whether the time limits for adjudication under Section 73 can be extended by notifications under Section 168A of the GST Act. The Supreme Court's order acknowledges the cleavage of opinion among High Courts and is expected to provide authoritative guidance. Given the pendency of the Supreme Court proceedings, the Court refrained from expressing any definitive opinion on the validity of the impugned notifications and observed that the matter is sub judice. The Court also noted that the Punjab and Haryana High Court has disposed of connected petitions, deferring to the Supreme Court's eventual decision and continuing interim orders. Opportunity of Hearing and Knowledge of Show Cause Notices The Petitioner contended that the SCNs dated 24th December, 2023 were uploaded only on the 'Additional Notices Tab' of the GST portal, which was not readily visible or accessible at the time, resulting in the Petitioner being unaware of the SCNs and unable to file replies or attend personal hearings. Consequently, the impugned orders were passed ex-parte. The Court referred to its earlier decisions in similar circumstances, notably W.P.(C) 13727/2024 ('Neelgiri Machinery') and other precedents where it was held that mere uploading of notices on a less accessible 'Additional Notices Tab' does not suffice to constitute valid service or notice. The Court emphasized the principle that orders should not be passed in default without affording a fair opportunity to the noticee to be heard on merits. Accordingly, the Court set aside the impugned orders and remanded the matter to the adjudicating authority with directions to provide the Petitioner an opportunity to file replies and appear in personal hearings. The Court mandated that hearing notices should not only be uploaded on the GST portal but also communicated via email and mobile to ensure actual knowledge. The Court granted the Petitioner a specific timeline (till 10th July 2025) to file replies to the SCNs and directed the adjudicating authority to consider the Petitioner's submissions afresh and pass orders in accordance with law. Effect of Pending Supreme Court Proceedings and Related Judicial Discipline The Court acknowledged the ongoing Supreme Court proceedings on the validity of the impugned notifications and observed that any order passed by the adjudicating authority shall be subject to the Supreme Court's final decision. The Court underscored the importance of judicial discipline by refraining from expressing opinions on the vires of Section 168A and the notifications while the Supreme Court's verdict is awaited. The Court also noted that the Petitioner's rights and remedies remain open, including appellate remedies, and directed that access to the GST Portal be provided to the Petitioner to enable uploading of replies and access to notices and related documents. 3. SIGNIFICANT HOLDINGS "Since there is no clarity on behalf of the Department, this Court follows the order dated 9th September, 2024 in Satish Chand Mittal (Trade Name National Rubber Products) vs. Sales Tax Officer SGST, Ward 25-Zone 1 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 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." "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." Core principles established include:
Final determinations on each issue are:
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