Delhi High Court
Tata Play Ltd vs Sales Tax Officer Class Ii/ Avato on 29 July, 2025
Author: Prathiba M. Singh
Bench: Prathiba M. Singh
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* IN THE HIGH COURT OF DELHI AT NEW DELHI
Reserved on: 01st May, 2025
Date of decision: 29th July, 2025
+ W.P.(C) 4781/2025 & CM APPL. 22012/2025
TATA PLAY LTD ..... Petitioner
Through: Mr. Gautam Narayan, Senior
Advocate with Mr. Anirudh Bakhru,
Mr. Victor Das, Mr. Vipul Singha and
Ms. Anwesh Padhi, Advocates.
versus
SALES TAX OFFICER CLASS II/ AVATO ..... Respondents
Through: Ms. Vaishali Gupta, Panel Counsel
(Civil) GNCTD.
CORAM:
JUSTICE PRATHIBA M. SINGH
JUSTICE RAJNEESH KUMAR GUPTA
JUDGMENT
Prathiba M. Singh, J.
1. This hearing has been done through hybrid mode.
I. Factual Background
2. The present petition has been filed by the Petitioner- Tata Play Ltd.
under Article 226 of the Constitution of India, challenging the Show Cause
Notice dated 30th November, 2024 (hereinafter, ‘the impugned SCN’) issued
by the Respondent- Sales Tax Officer Class II/ AVATO, Department of Trade
and Taxes Office, New Delhi (hereinafter, ‘the Respondent-Department’),
pertaining to the tax period April 2020 to March 2021.
3. Further, the petition also challenges the consequent demand order dated
28th February, 2025 (hereinafter, ‘the impugned order’) arising from the
impugned SCN whereby the Respondent has demanded a payment of Rs.
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By:DHIRENDER KUMAR
Signing Date:30.07.2025
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5,63,52,147/- as tax along with Rs. 4,22,64,110/- towards interest and Rs.
56,35,214/- towards penalty in respect of the tax period April 2020 – March
2021.
4. The present petition arises out of the following two major aspects that
require the consideration of this Court:
a. Whether the impugned SCN was issued to the Petitioner within the
period of limitation, as prescribed under Section 73 of the Central
Goods and Service Tax Act, 2017 (hereinafter, ‘the CGST Act‘)?
b. Whether adequate opportunity has been afforded to the Petitioner for
filing a reply with respect to the impugned SCN and for participating
in the personal hearings thereafter?
I(A). Brief Facts
5. The Petitioner is a company registered under the Companies Act, 1956
and is engaged in the business of providing Direct-To-Home (DTH)
broadcasting services. The Petitioner company is registered under the Central
Goods and Service Tax Act, 2017 (hereinafter, ‘the CGST Act‘) vide GSTIN
07AAGCS9294M1ZH.
6. Vide the impugned SCN and the consequent impugned order issued by
the Respondent-Department, a demand was raised upon the Petitioner on the
ground that the Petitioner had erroneously availed excess Input Tax Credit
(hereinafter, ‘ITC’). The validity of the said demand raised by the
Respondent-Department stands challenged by the Petitioner before this Court.
7. The impugned SCN issued by the Respondent-Department, along with
stipulating the grounds for raising the demand therein, also contains the
details of personal hearing granted to the noticee, as also the date of filing of
reply to the impugned SCN. The same is reproduced herein below:
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By:DHIRENDER KUMAR
Signing Date:30.07.2025
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Details of personal hearing and due date to file reply:
Sr.
Description Particulars
No.
Date by which reply has to be
1 30-12-2024
submitted
2 Date of personal hearing 17-01-2025
3 Time of personal hearing 1:15 pm
Venue where personal hearing will WARD OFFICE,
4
be held 13TH FLOOR
8. After the issuance of the impugned SCN on 30th November, 2024, the
Petitioner, on 27th December, 2024, sent a reply to the Respondent-
Department. In the said reply, the Petitioner sought an extension of 15 days
to allow them sufficient time to compile and submit the required documents
to support their contentions against the demands raised in the impugned SCN.
9. Thereafter, on 20th January, 2025, the Respondent-Department
uploaded an adjournment notice on the GST Portal of the Petitioner and
extended the time for filing reply to the impugned SCN along with granting
another opportunity for personal hearing on 27th January, 2025.
10. On 22nd January, 2025, the Petitioner proceeded to file a detailed reply
to the impugned SCN, along with all the supporting documents. This was
followed by a supplementary reply dated 21st February, 2025 wherein further
clarifications were provided against the demands raised in the impugned SCN.
11. However, the Petitioner failed to avail the opportunity for personal
hearing on 27th January, 2025 which was granted by the Respondent-
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By:DHIRENDER KUMAR
Signing Date:30.07.2025
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Department on 20th January, 2025.
12. Subsequently, the impugned order dated 28th February, 2025, was
issued, raising a demand upon the Petitioner for Rs. 5,63,52,147/- as tax along
with Rs. 4,22,64,110/- towards interest and Rs. 56,35,214/- towards penalty
in respect of the tax period April 2020 – March 2021.
II. Submissions on behalf of the Petitioners
13. Firstly, it is the case of Mr. Gautam Narayan, ld. Senior counsel on
behalf of the Petitioner that the demand in the impugned SCN and the
consequent impugned order has been raised by the Respondent-Department
without jurisdiction and beyond the prescribed limitation period. Hence, the
same is liable to be set aside.
i. To support this contention, the Petitioner has relied upon
Notification No. 40/2021 dated 29th December, 2021, read with Rule
80(1) of CGST Rules, 2017, wherein the last date for furnishing of
returns for FY 2020-21 was extended till 28th February, 2022.
ii. Therefore, the stand of the Petitioner is that the period for
initiation of any proceedings under Section 73(2) read with Section
73(10) of the CGST Act with respect to FY 2020-21 came to an end on
28th November, 2024.
iii. Emphasis has been laid by the Petitioner on Section 73(10) of
the CGST Act, while submitting that a wrongly availed ITC can only
be challenged within three years of such wrongful availment, provided
that a show cause notice is issued three months prior to the expiry of
the said three years.
iv. It is further urged on behalf of the Petitioner that in the present
case, the three year period for passing the impugned order expired on
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By:DHIRENDER KUMAR
Signing Date:30.07.2025
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28th February, 2025 and the impugned SCN was issued on 30th
November, 2024, when it should have been issued prior to 28 th
November, 2024. Thus, it is the case of the Petitioner that the order for
reversion of the ITC by the Respondent-Department was beyond the
statutory limitation and thus, without jurisdiction.
v. To support this stand, the Petitioner has relied upon a judgment
of the High Court of Andhra Pradesh dated 05th February, 2025 in W.P.
No.1463 of 2025 titled M/s Cotton Corporation of India v Assistant
Commissioner (ST) (Audit) (FAC), 2025 SCC Online AP 652
wherein, while interpreting pari materia provisions of the APGST Act,
2017, the High Court dealt with facts similar to the instant case and
held the proceedings to be time barred.
vi. Further, reliance has also been placed upon by the Petitioner on
the decision of the Supreme Court in State of Himachal Pradesh &
Anr. vs. Himachal Techno Engineers & Anr., (2010) 12 SCC 210,
wherein the time limit of three months set out in Section 34 of the
Arbitration and Conciliation Act, 1996 has been considered and
interpreted.
14. Secondly, it is submitted on behalf of the Petitioner that an opportunity
for personal hearing ought to have been afforded to the Petitioner in terms of
Section 75(4) of the CGST Act; whereas, the impugned order has been passed
in violation of the principles of natural justice. In this regard, it is further
submitted that the right to be granted an opportunity of personal hearing is
made subject to grant of not more than three adjournments under the proviso
to Section 75(5) of the CGST Act.
i. It is the stand of the Petitioner that they did not seek three
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adjournments of personal hearing and therefore, the right of the
Petitioner to a personal hearing under Section 75(4) of the CGST Act
could not have been curtailed. Thu, the Respondent was, in fact, under
a statutory obligation to grant an opportunity for personal hearing to the
Petitioner under Section 75(5) of the CGST Act.
ii. It is further submitted that on 22nd January, 2025, the Petitioner
submitted a detailed reply to the impugned SCN and had also sought
an opportunity for personal hearing. It is also emphasised by Mr.
Narayan, ld. Senior Counsel for the Petitioner, that while uploading the
said reply on the GST portal, although the Petitioner selected ‘Yes’ for
the option of personal hearing, however, due to a glitch on the GST
portal, it shows as ‘No’ on the printed form.
iii. While acceding to the fact that the Petitioner missed the personal
hearing scheduled for 27th January, 2025, it is submitted that on 21 st
February, 2025, the Petitioner sent an additional reply to the impugned
SCN and once again, sought an opportunity for personal hearing.
However, again, due to the glitch in the GST portal, despite selecting
‘Yes’ by default, the printed form shows as ‘No’ for the personal
hearing option.
iv. Reliance has also been placed upon the order passed by this
Court in M/s. Sree Ananta Exim vs. Union of India & Ors., W.P. (C)
No. 10424 of 2014 wherein while dealing with an order passed under
Section 73 of the CGST Act, the Court remanded the matter to the
Adjudicatory Authority to afford the Petitioner therein an opportunity
of personal hearing. In the said case, similar to the instant case, due to
a glitch in the system, the tax payer was not permitted to select the
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By:DHIRENDER KUMAR
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option of personal hearing.
III. Per Contra: Submissions on behalf of Respondent-Department
15. It is submitted on behalf of the Respondent-Department that the
impugned order issued under Section 73 of the CGST Act is an appealable
order under Section 107 of the CGST Act. Hence, it is submitted that the
Petitioner shall be directed to avail the statutory remedy and the present
petition shall be disposed of accordingly.
16. It is further submitted on behalf of Respondent-Department that the due
date of filing return for FY 2020-21 as per Rule 80 of the CGST Rules read
with Notification No. 40/2021 – Central Tax dated 29th December, 2021 was
28th February, 2022. Thus, it is the case of the Respondent-Department that
as per Section 73(10) of CGST Act, the necessary order in the present set of
facts could have been passed till 28th February, 2025 and thus, last date of
issuing impugned SCN is three months prior to 28th February, 2025 that is 30th
November, 2024.
i. It is submitted by Ms. Vaishali Gupta, ld. Counsel for GNCTD
that the time of ‘three months’ is to be interpreted as ‘three calendar
months’ and thus 3 months prior to 28th February,2025 would come to
30th November, 2024.
ii. It is further clarified on behalf of the Respondent-Department
that the date of 28th February, 2025, being the last date of the month,
the month of February, 2025 is to be calculated as one month, month
of January, 2025 is to be calculated as second month and month of
December, 2024 is to be calculated as third month. Reliance is placed
on judgment of the House of Lords in Dodds vs Walker (1981) 2 AII
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By:DHIRENDER KUMAR
Signing Date:30.07.2025
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ER 609 (HL) wherein of the interpretation of a number of months is
described to be calculated as calendar months.
iii. Thus, in the light of these submissions, it is the case of the
Respondent-Department that the date three months prior to 28th
February, 2025 would be 30th November, 2024 and hence, the
impugned SCN as well as the impugned order are well within the
limitation period.
17. With respect to the opportunities for personal hearing, it is submitted
on behalf of the Respondent-Department that multiple opportunities were
granted to the Petitioner for personal hearing, however, the Petitioner failed
to avail the same.
i. It is the case of the Respondent-Department that the impugned
SCN dated 30th November, 2024 provided for an opportunity of
personal hearing on 17th January, 2025 to the Petitioner. However, on
request of the Petitioner, the hearing scheduled on 17 th January,2025
was adjourned to 27th January, 2025.
ii. It is further stated that the Petitioner filed a reply dated 22 nd
January, 2025 and requested for personal hearing however, failed to
attend the hearing scheduled on 27th January, 2025. Thereafter, the
Petitioner filed an additional reply dated 21st February, 2025 whereby
no opportunity of personal hearing was sought by the Petitioner.
iii. With respect to the argument pertaining to the glitch in the GST
Portal raised by the Petitioner, it is submitted by the Respondent-
Department that during their course of arguments before this Court on
24th April, 2025, the Petitioner pointed that there is a glitch on GST
portal because of which the assessee is constrained to tick ‘no’ to the
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By:DHIRENDER KUMAR
Signing Date:30.07.2025
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personal hearing in the form. However, a perusal of the contents of
reply dated 21st February, 2025 would show that no opportunity of
personal hearing was sought by the petitioner. Hence, it is the case of
the Respondent-Department that the Respondent has given suitable
opportunities for personal hearing to the Petitioner.
IV. Analysis & Findings
18. Heard the parties. The Court has also perused the written submissions
submitted on behalf of the parties.
IV(a) Whether the impugned SCN was issued to the Petitioner within the
period of limitation, as prescribed under Section 73 of the CGST Act?
19. Under the Scheme of Section 73 of the CGST Act, whenever it appears
to the ‘proper officer’ that any tax has not been paid or short paid or has been
erroneously refunded or where ITC has been wrongly availed or utilized, a
notice can be served on the person chargeable with such tax, requiring to show
cause as to why he should not pay the amount specified in the notice along
with interest payable thereon.
20. The limitation for issuance of such a notice under Section 73 of the
CGST Act has to be construed in the light of Section 73(2) and 73(10) of the
CGST Act. The said two sub-sections are set out below:
“Section 73(2) – The proper officer shall issue the notice
under sub-section (1) at least three months prior to the
time limit specified in sub-section (10) for issuance of
order.
……… ………..
Section 73(10) – The proper officer shall issue the order
under sub-section (9) within three years from the due date
for furnishing of annual return for the financial year to
which the tax not paid or short paid or input tax credit
wrongly availed or utilized relates to or within three yearsSignature Not Verified
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By:DHIRENDER KUMAR
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from the date of erroneous refund.”
21. A perusal of the above stated provisions would show that an order has
to be passed by the ‘proper officer’ within a period of three years from the
due date for furnishing the annual returns for the said financial year. For
issuance of a show cause notice, at least three months’ period prior to the time
limit under Section 73(10) of the CGST Act would be available. Thus, the
show cause notice has to be issued at least three months prior to the outer limit
prescribed for passing of an order under Section 73(10) of the CGST Act.
22. In the opinion of this Court, there is a difference in the language of the
two sub-sections discussed herein above. Section 73(10) of the CGST Act
prescribes an outer limit for passing of an adjudication order under the Act.
23. On the other hand, Section 73(2) of the CGST Act provides that at least
three months prior to the outer limit of 3 years for passing an order under
Section 73(10) of the CGST Act, a notice is to be served.
24. While the purpose behind Section 73(10) of the CGST Act is to fix the
date by which an adjudication order has to be issued, the purpose of Section
73(2) of the CGST Act is to ensure that at least three months is available to
the taxable person for filing a reply to the show cause notice issued to them
and for being heard in a proper manner. Thus, the time period between
issuance of the show cause notice and the outer limit for passing of the order
should be at least three months.
25. The statutory intent behind providing this gap of 3 months can be
interpreted to arise from a further reading of Section 73, CGST Act wherein,
Section 73(3), CGST Act contemplates the service of a statement upon the
noticee, giving all the details of the demand proposed to be raised. Further,
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By:DHIRENDER KUMAR
Signing Date:30.07.2025
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under Section 73(5), CGST Act, the noticee has the option of paying the tax
by doing a self-assessment and if such amount is paid within 30 days of the
issuance of the show cause notice under Section 73(1), CGST Act, no penalty
would be payable by the noticee.
26. Additionally, the noticee is also entitled to give a representation in
response to the show cause notice issued and thereafter, only once such
representation is duly considered, an order under Section 73(10), CGST Act,
shall be passed.
27. In the light of this background, the following decisions which have
been cited by the ld. Counsels for both parties in the present case are
considered by this Court:
A. State of Himachal Pradesh and Anr. v. Himachal Techno
Engineers and Anr. (2010) 12 SCC 210:
i. In this case, the Supreme Court was dealing with a petition filed
under Section 34 of the Arbitration and Conciliation Act, 1996. The
question that arose for consideration in the case was as to what would
be the limitation for filing such a petition.
ii. The Supreme Court distinguished between the language used in
Section 34(3) of the Arbitration and Conciliation Act, 1996 and the
proviso to Section 34(3). While the main provision used the expression
‘three months’, the proviso used the expression ’90 days’. The Supreme
Court, while following Dodds v. Walker (1981) 2 AII ER 609 (HL), a
decision of the House of Lords, held as under:
“14. The High Court has held that “three months”
mentioned in Section 34(3) of the Act refers to a period
of 90 days. This is erroneous. A “month” does not refer
to a period of thirty days, but refers to the actual period
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By:DHIRENDER KUMAR
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of a calendar month. If the month is April, June,
September or November, the period of the month will be
thirty days. If the month is January, March, May, July,
August, October or December, the period of the month
will be thirty-one days. If the month is February, the
period will be twenty-nine days or twenty-eight days
depending upon whether it is a leap year or not.
15. Sub-section (3) of Section 34 of the Act and the
proviso thereto significantly, do not express the periods
of time mentioned therein in the same units. Sub-section
(3) uses the words “three months” while prescribing the
period of limitation and the proviso uses the words “thirty
days” while referring to the outside limit of condonable
delay. The legislature had the choice of describing the
periods of time in the same units, that is, to describe the
periods as “three months” and “one month”
respectively or by describing the periods as “ninety
days” and “thirty days” respectively. It did not do so.
Therefore, the legislature did not intend that the period
of three months used in sub-section (3) to be equated to
90 days, nor intended that the period of thirty days to be
taken as one month.
16. Section 3(35) of the General Clauses Act, 1897
defines a “month” as meaning a month reckoned
according to the British calendar.
17. In Dodds v. Walker the House of Lords held that in
calculating the period of a month or a specified number
of months that had elapsed after the occurrence of a
specified event, such as the giving of a notice, the general
rule is that the period ends on the corresponding date in
the appropriate subsequent month irrespective of whether
some months are longer than others. To the same effect is
the decision of this Court in Bibi Salma Khatoon v. State
of Bihar.
18. Therefore when the period prescribed is three
months (as contrasted from 90 days) from a specified
date, the said period would expire in the third month on
the date corresponding to the date upon which the
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period starts. As a result, depending upon the months, it
may mean 90 days or 91 days or 92 days or 89 days.”
B. M/s Cotton Corporation of India v Assistant Commissioner
(ST) (Audit) (FAC), 2025 SCC Online AP:
i. The decision of the Supreme Court in Himachal Techno
Engineers (Supra) was followed in this case where the Court held that
a delay of two days in issuing a show cause notice under the GST Act
would not be liable to be condoned. The Court held that the period
under Section 73(2) of the GST Act is mandatory. The relevant
paragraphs of the said judgment are extracted herein below:
“10. The aforesaid Judgments clearly laid down the
principle that, when a period, available for a certain
action, is defined in terms of months, it would mean that
the corresponding date of the corresponding month would
be the cutoff date. In the present case, the cutoff date for
issuing an order is 28.02.2025. The three months period
which would elapse from this date would be 28.11.2024.
Since the notice was issued on 30.11.2024, it would be
beyond the time stipulated under Section 73(2) of the GST
Act.
11. The next issue that remains before this Court is
whether the delay of two days in issuing the said notice
can be condoned or whether the issue is not relevant as
the provision is only directory.
12. As pointed out by the learned counsel, the GST Act,
has put in place certain protections for tax payers. One of
the primary protections is that orders cannot be passed
against the tax payers, beyond the periods stipulated in
the Act. It is settled law that these periods of limitation
are mandatory and not orders can be passed beyond the
periods set out in the Act. In such a situation, it would be
difficult to hold that the stipulation as to the period of
initiation, of such proceedings, by issuance of a showSignature Not Verified
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By:DHIRENDER KUMAR
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cause notice, would only be directory and not mandatory.
13. Another way of looking at this issue is the purpose for
which such limitation has been prescribed under the Act.
Section 75 of the GST Act, stipulates that the tax payer is
not only entitled to a notice before any assessment is
carried out but also the right of personal hearing,
irrespective of whether such personal hearing is
requested. When there is a possibility of an adverse order
being passed against tax payer, the facility of obtaining
at least three adjournments for personal hearing etc. The
said provisions, protecting the interest of the tax payer,
would be rendered otiose if notice should permitted to be
sent without a minimum waiting period. The said
protections can then be bypassed by the authorities
issuing show cause notice with a week’s time or 10 days
and calling upon tax payer to put forth his objections in
that shortened time. That does not appear to be intent of
the provisions of Section 75(2) or Section 73 (10) of the
GST Act.
14. For all the aforesaid reasons, we would have to hold
that the time permit set out under 73(2) of the Act is
mandatory and any violation of that time period cannot
be condoned, and would render the show cause notice
otiose.”
28. Considering all the submissions made by the concerned parties, this
Court is of the opinion that it is not in dispute that the last date for filing of
returns in terms of Rule 80(1)(A) of the CGST Rules was extended till 28th
February, 2022. The said rule is set out below:
“Rule 80(1)(A) –
Notwithstanding anything contained in sub-rule (1), for
the financial year 2020-2021, the said annual return shall
be furnished on or before the twenty-eighth day of
February, 2022″
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29. Thus, in the facts of the present case, the period under Section 73(10),
CGST Act, for issuance of the impugned order was to end on 28th February,
2025. Calculating backwards, the impugned SCN had to be issued at least
three months prior to 28th February, 2025 i.e., there ought to be a clear three
months period between the date of issuance of the impugned SCN and the
outer limit for passing of the impugned order.
30. The impugned SCN in this case was issued on 30th November, 2024. It
is the case of the Petitioner that it was delayed by two days as the stipulated
three months period would have expired on 28th November, 2024.
31. The Respondent-Department’s case on the contrary is that there was a
gap of three clear calendar months between the issuance of the impugned SCN
and passing of the impugned order i.e., December, 2024, January, 2025 and
February, 2025 and therefore the issuance of the impugned SCN on 30th
November, 2024 is not barred by limitation.
32. Curiously, the dates which were considered by the Andhra Pradesh
High Court in M/s Cotton Corporation of India(supra) are totally identical
to that in the present case. However, an analysis of the decision in Himachal
Techno Engineers (Supra) would show that the expression ‘three months’
has to be reckoned and interpreted as three calendar months and not as 90
days.
33. While the month of December has 31 days, the month of January has
31 days and the month of February has 28 days. Thus, the total number of
days come to 90 days. Even if the time period is calculated as 90 days, there
is a clear gap of 90 days between the dates of 30 th November, 2024 to 28th
February, 2025. Thus, viewed in either way, the impugned SCN would not be
barred by limitation and on this issue, this Court, therefore, does not agree
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By:DHIRENDER KUMAR
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with the decision of the Andhra Pradesh High Court in M/s Cotton
Corporation of India(supra).
34. The Supreme Court, while deciding Himachal Techno Engineers
(supra) has referred to the definition of ‘month’, as stipulated in the General
Clauses Act which reads as under:
“month” shall mean a month reckoned according to
the British calendar.”
35. Thus, a period of three months would mean three British calendar
months i.e., December, 2024, January, 2025 and February, 2025.
36. Hence, upon a careful consideration of all the facts and circumstances
of this case, read with all the relevant case laws, as relied upon by the parties,
this Court is of the opinion that the issuance of the impugned SCN dated 30 th
November, 2024, is well within the stipulated time period of 3 three months
before the passing of the impugned order dated 28th February, 2025. Thus, the
impugned SCN and the impugned order, having been issued within the
statutory limitations, are neither time barred nor issued without jurisdiction
and are thus, not liable to be set aside on this ground.
IV(b) Whether adequate opportunity has been granted to the Petitioner for
filing a reply to the impugned SCN and for participating in the
personal hearing?
37. Coming to the second issue i.e., whether adequate opportunity has been
afforded to the Petitioner for participating in the proceedings emanating from
the impugned SCN, the records would show that the impugned SCN was
issued on 30th November, 2024. Thereafter, a reply was to be filed by the
Petitioner on or before 30th December, 2024 i.e., a full month was given to the
Petitioner to file a reply.
Signature Not Verified
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By:DHIRENDER KUMAR
Signing Date:30.07.2025
15:27:21
38. The impugned SCN also communicated a date for personal hearing,
which was fixed for 17th January, 2025. However, just three days before the
expiry of the date to file a reply i.e., on 27th December, 2024, the Petitioner
sought 15 days’ time extension for filing the reply. The said letter issued by
the Petitioner to the Respondent-Department, seeking extension of time to file
reply reads as under:
“Dear Sir,
We, Tata Play Limited (‘we’ or ‘us’ or ‘the
company’ or ‘Noticee’) are registered under Central
Goods and Services Tax Act (CGST Act) and Delhi Goods
and Services Tax Act (DGST Act), 2017 vide GSTIN
07AAGCS9294M1ZH are in receipt of the above referred
SCN with reference ZD071124042245S dated 30
November 2024 issued under section 73 of CGST Act,
2017 for FY 2020-21.
In this regard, while we have initiated the collation
of necessary data and information for preparing the
response, we would like to respectfully bring to your kind
attention that the due date for submission of Annual
Return (Form GSTR- 9) and reconciliation statement
(Form GSTR-9C) is also 31st December 2024 and the
team is currently occupied with finalisation of the same.
Given the above, we humbly request your good
office to grant an extension of 15 days from the due date
of the notice to allow us sufficient time to compile and
submit the required documents, ensuring complete
compliance with all statutory obligations.”
39. Thus, following the request made by the Petitioner on 27th December,
2024, the time for filing a reply was then extended till 27th January, 2025. The
first reply was then submitted by the Petitioner on 22nd January, 2025. The
same was titled as an “Interim reply against the Show Cause Notice dated 30th
November, 2024”.
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By:DHIRENDER KUMAR
Signing Date:30.07.2025
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40. Subsequently, an additional reply was also filed by the Petitioner on
21st February, 2025. The Petitioner, however, did not attend the personal
hearing on 27th January, 2025 and in the petition, concedes that it was due to
an “inadvertent oversight” that it could not attend the hearing. Subsequently,
the impugned order came to be passed on 28th February, 2025.
41. The chronology of events in the present case, as discussed at length
herein above, would show that adequate opportunity was given to the
Petitioner for filing of the reply. Two dates for personal hearing were fixed
i.e., 17th January, 2025 and 27th January, 2025. For the first hearing, an
adjournment was sought by the Petitioner and for the second hearing, no
adjournment was sought. In fact, the Petitioner admits that they missed the
hearing due to an inadvertent oversight.
42. Section 75(5) of the CGST Act, which is relied upon by the Petitioner
to argue that a minimum of three opportunities of hearing ought to have been
granted, reads as under:
“(5) The proper officer shall, if sufficient cause is
shown by the person chargeable with tax, grant time to
the said person and adjourn the hearing for reasons to be
recorded in writing:
Provided that no such adjournment shall be
granted for more than three times to a person during the
proceedings”
A perusal of the above would show that it is only upon sufficient cause being
shown, that an adjournment of hearing can be granted by the proper officer.
The proviso to the said provision states that a maximum of three adjournments
can be granted in any circumstance.
43. However, this provision cannot be interpreted in a manner that there
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By:DHIRENDER KUMAR
Signing Date:30.07.2025
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has to mandatorily be a minimum of three adjournments afforded to every
person. For seeking an adjournment, such person has to show sufficient cause
and at the bare minimum, has to at least make a request for adjournment.
44. In the present case, for the first hearing, an adjournment was sought and
the same was granted. For the second hearing, no adjournment appears to have
been sought. In fact, in the reply dated 22nd January, 2025, even if it is
presumed that the Petitioner sought a hearing, the hearing was granted on 27 th
January, 2025 but was not attended by the Petitioner.
45. A perusal of the reply dated 22nd January, 2025 reveals as under:
“E. PRAYER
29. The Noticee requests to be heard in person in the
event their contentions are not acceptable, and
continuation of the proceedings is sought. Without
prejudice to any of the contentions set above, it is
submitted that the Noticee reserves the right to know the
basis/ issue and make additional submissions during the
personal hearing and before the passage of any notice/
adverse order.
30. Furthermore, the Noticee craves leave to add to, alter,
modify or rescind the submissions made here-in-above,
either wholly or partly and to produce further documents
and/or evidence before or at the time of such personal
hearing.
31. The Noticee requests you to take the above on record
and acknowledge the receipt of the same. The Noticee
assures you their fullest co-operation in this connection.”
46. After filing of the reply dated 22nd January, 2025, the personal hearing
was yet to take place on 27th January, 2025 but since the Petitioner did not
attend the hearing, nor sought an adjournment, the proper officer proceeded
to pass the impugned order on 28th February, 2025.
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By:DHIRENDER KUMAR
Signing Date:30.07.2025
15:27:21
47. In the additional reply dated 21st February, 2025, which was submitted
just a week before the expiry of the last date to pass the order, the Petitioner,
being conscious of the fact that it had missed the opportunity for personal
hearing on 27th January, 2025, stated as under:
“23. Should you require any other
clarifications/information, we would be glad to provide
you the same. We assure you of our full cooperation and
are hopeful that you will accede to this request and
oblige. In case of any concerns, we request that personal
hearing be granted in this matter.”
48. A conjoint reading of all the relevant notices along with the replies filed
by the Petitioner would show that adequate opportunity has been granted by
the Respondent-Department for filing of reply and for personal hearing. The
interpretation given to Section 75(5), CGST Act, that a minimum of three
adjournments ought to be granted is not tenable. In terms of the said provision,
it is a maximum of three adjournments that can be granted upon showing
sufficient cause and upon a request being made.
49. Under these circumstances, this Court is of the view that entertaining
the present writ petition is not warranted.
50. As held by the Supreme Court in Civil Appeal No. 5121 of 2021 titled
The Assistant Commissioner of State Tax and Others vs. M/s Commercial
Steel Limited, a writ petition can be entertained under exceptional
circumstances only which are set out in the said judgment as under:
“11. The respondent had a statutory remedy under section
107. Instead of availing of the remedy, the respondent
instituted a petition under Article 226. The existence of an
alternate remedy is not an absolute bar to the maintainability
of a writ petition under Article 226 of the Constitution. But aSignature Not Verified
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By:DHIRENDER KUMAR
Signing Date:30.07.2025
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writ petition can be entertained in exceptional circumstances
where there is:
(i) a breach of fundamental rights;
(ii) a violation of the principles of natural justice;
(iii) an excess of jurisdiction; or
(iv) a challenge to the vires of the statute or delegated
legislation.
12. In the present case, none of the above exceptions was
established. There was, in fact, no violation of the principles of
natural justice since a notice was served on the person in charge
of the conveyance. In this backdrop, it was not appropriate for
the High Court to entertain a writ petition. The assessment of
facts would have to be carried out by the appellate authority.
As a matter of fact, the High Court has while doing this
exercise proceeded on the basis of surmises. However, since
we are inclined to relegate the respondent to the pursuit of the
alternate statutory remedy under Section 107, this Court makes
no observation on the merits of the case of the respondent.
13. For the above reasons, we allow the appeal and set aside
the impugned order of the High Court. The writ petition filed by
the respondent shall stand dismissed. However, this shall not
preclude the respondent from taking recourse to appropriate
remedies which are available in terms of Section 107 of the
CGST Act to pursue the grievance in regard to the action
which has been adopted by the state in the present case.
51. In the opinion of this Court, an appeal before the appellate authority is
a continuation of the proceedings before the adjudicating authority itself. A
full-fledged remedy for filing an appeal has already been provided under
Section 107 of the CGST Act. This Court, while interpreting the powers of
Appellate Authority under Section 107 of the CGST Act in W.P.(C)
2926/2025 titled Sonu Monu Telecom Pvt. Ltd. Through its Director
Jitender Garg & Anr. V. The Union of India Revenue Secretary, Ministry
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By:DHIRENDER KUMAR
Signing Date:30.07.2025
15:27:21
of Finance & Anr. held as under:
“12. Even if it is presumed that the
Adjudicating Authority did not adequately
consider the reply filed by the Petitioner, in the
opinion of this Court, the entire purpose of
providing a first appeal to the Appellate
Authority is to rectify any error made by the
Adjudicating Authority. Section 107(11) of the
Act is clear to the extent that the Appellate
Authority has the power to either confirm,
modify or annul the decision or order. This, in
effect, means that the Appellate Authority is
permitted to take all such measures required or
pass all such orders, which could be passed in a
first appeal.
13. The only embargo in the said provision,
is that the matter is not to be remanded back. The
purpose or the legislative intent behind the said
embargo is to ensure finality in proceedings and
to prevent repetitive re-consideration of the
matter by the Adjudicating Authority. The
Appellate Authority is fully empowered to
consider the entire matter afresh including the
reply of the Petitioner, as also the reasoning
given by the Adjudicating Authority, the
evidence on record including the statements and
the documents. There can be no doubt that the
appeal is a full-fledged first appeal before the
Appellate Authority.
14. In fact, a coordinate bench of this Court
Addl. D. G. (Adjudication) v. Its My Name P.
Ltd., (2020 SCC OnLine Del 2760) in while
dealing with a parallel provision i.e., Section
129B of the Customs Act, has not only held that
the expressions ‘confirm, modify or annul the
decision or order’ have wide amplitude, but alsoSignature Not Verified
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By:DHIRENDER KUMAR
Signing Date:30.07.2025
15:27:21
encouraged the Appellate Authority to decide the
matter on merits, wherever possible. The relevant
portions of the judgment is extracted below:
“56. Firstly, section 129B(1) of the Act
empowers the learned Tribunal, seized with
an appeal, challenging the order of the
adjudicating authority, to “pass such orders
thereon as it thinks fit, confirming,
modifying or annulling the decision or order
appealed against or may refer the case back
to the authority which passed such decision
or order with such directions as the
Appellate Tribunal may think fit, for a fresh
adjudication or decision, as the case may be,
after taking additional evidence, if
necessary”. We are convinced that the
jurisdiction, of the learned Tribunal, to
“confirm, modify or annul” the order
dated October 4, 2019, was wide enough to
encompass the power to direct provisional
release, and fix the terms thereof. Remand,
to the authority to pass the order under
appeal before the learned Tribunal, is,
statutorily, only an alternative course of
action, the learned Tribunal. We may take
judicial notice, at this point, of the fact
repeated demands, to the authorities below,
merely clog the litigative process and lead
to multiplicity of proceedings, and benefits
neither the assessee nor the Revenue.
Where, therefore, the learned Tribunal is
in a position to decide the appeal, it would
be well advised to do so, rather than merely
remand the matter to the authority below.
Indeed, in a case in which the learned
Tribunal is in a position to decide the
appeal on merits, and pass effective
unenforceable directions, remand, by it, ofSignature Not Verified
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By:DHIRENDER KUMAR
Signing Date:30.07.2025
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the proceedings, the authority below, may
amount, practically, to abdication of its
jurisdiction. It is obviously with a view to
ensure that the demand is not resorted to,
as an “easy way out”, that the Legislature
has, advisedly, conferred wide powers, on
the learned Tribunal, to confirm, modify or
annul the order before it. On principle,
therefore, we are unable to discern any
apparent illegality, or want of propriety, on
the part of the learned Tribunal, in directing
provisional release and fixing the terms
thereof, rather than remand in the matter to
the ADG, to undertake the said exercise.
15. Similarly, in Sun Pharma Laboratories
v. Union of India (Writ Petition. (C) No. 09 of
2020), the Appellate Authority, despite finding
the grounds relied upon by the Adjudicating
Authority to be erroneous, sustained the rejection
of the refund claim on an alternate line of
reasoning. Consequently, the
Applicant/Petitioner had preferred the said writ
petition challenging the decision of the Appellate
Authority. The Division Bench of the Sikkim High
Court upheld the Appellate Authority’s power
under Section 107(11) of the Act to re-examine
the matter on merits. The relevant portions of the
order are extracted below:
“5. An appeal was preferred by the
petitioner before the Commissioner
(Appeals), CGST and Central Excise,
Siliguri on 01.07.2019, who passed an order
dated 11.09.2019 holding that the ground of
rejection of the refund claim in the
impugned order was erroneous. However,
after an examination as to whether or not
any excess payment of tax had actuallySignature Not Verified
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occurred in the case, rejected the appeal by
holding that there is no requirement of
refund.
6. Therefore, recourse is taken to redress the
grievance of the petitioner by filing this writ
petition before this Court, as no Goods and
Services Tax Appellate Tribunal had been
constituted to entertain an appeal under
Section 112 of the CGST Act.
******
16. We are unable to accept the submission
of learned counsel for the petitioner that
once the order of the
Adjudicating Authority was held to be
erroneous by the Appellate Authority,
the Appellate Authority ought to have
allowed refund of excess tax paid by
allowing the appeal of the petitioner
(the appellant) without any further
consideration.
17. Relevant part of section 107(11)
of CGST Act,2017 reads as under:
(11) The Appellate Authority shall, after
making such further inquiry as may be
necessary, pass such order, as it thinks just
and proper, confirming, modifying or
annulling the decision or order appealed
against but shall not refer the case back to
the adjudicating authority that passed the
said decision or order.
18. Having regard to the contour and ambit
of section 107 (11) of CGST Act, in our
considered opinion, the Appellate
Authority cannot be faulted for
undertaking an enquiry even after
observing that the order of the
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By:DHIRENDER KUMAR
Signing Date:30.07.2025
15:27:21
Adjudicating Authority was erroneous
because the Appellate Authority has to
decide whether the petitioner has made out
a case for grant of refund.”
The above order makes it clear that the powers of the
Appellate Authority under Section 107(11) of the Act
are wide enough to include powers to reconsider the
reasoning adopted by the Adjudicating Authority and
evidence on record by undertaking an enquiry into the
merits.”
52. Under these circumstances, this Court is not inclined to entertain the
present writ petition. However, considering the nature of the demand raised
in the impugned order, since the order is an appealable order, the Petitioner is
permitted to avail of the appellate remedy by 31st August 2025, along with the
necessary pre-deposit mandated under Section 107 of the CGST Act, in which
case the appeal shall be adjudicated on merits and shall not be dismissed on
the ground of limitation.
53. Needless to add, the observations made in this case shall not affect the
final adjudication of the appeal.
54. The writ petition is accordingly dismissed in the above terms. All
pending applications are disposed of.
PRATHIBA M. SINGH
JUDGE
RAJNEESH KUMAR GUPTA
JUDGE
JULY 29, 2025
Rahul/ss
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By:DHIRENDER KUMAR
Signing Date:30.07.2025
15:27:21
