W.P.(C)/12943/2025 of M/S K.K. CONSTRUCTION CO. Vs COMMISSIONER OF SGST, DELHI & ANR.

*IN THE HIGH COURT OF DELHI AT NEW DELHIDate of decision: 26[th]August, 2025+W.P.(C) 12943/2025

M/S K.K. CONSTRUCTION CO......PetitionerThrough:Mr. Shailender Verma, Mr. SubhashChandra Gupta, Mr. Siddhartha Verma& Mr. Amrish Kumar Gautam Advs.(M:[REDACTED])

versus

COMMISSIONER OF SGST, DELHI & ANR......RespondentsThrough:Mr. Sumit K. Batra, Adv.

CORAM:JUSTICE PRATHIBA M. SINGHJUSTICE SHAIL JAIN

Prathiba M. Singh, J. (Oral)

1.This hearing has been done through hybrid mode.

2.The present petition has been filed by the Petitioner- M/s K.K.Construction Co. through its Proprietor, under Article 226 of the Constitutionof India, inter alia, challenging the Show Cause Notice dated 8th December,2023 (hereinafter ‘SCN’) and the impugned order dated 22nd April, 2024(hereinafter ‘impugned order’) passed in respect of Financial Year 2018-19by the office of Sales Tax Officer Class II/ AVATO, Delhi. Vide the impugnedorder demand of Rs. 4,12,73,823/- has been raised against the Petitioner.

3.Additionally, the petition also challenges the vires of Notification No.9/2023-Central Tax dated 31st March, 2023 and Notification No. 56/2023-Central Tax dated 28th December, 2023. Ld. Counsel for the Petitionersubmits that the challenge is to the Notification 9/2023-State Tax dated 31stMarch, 2023 and Notification 56/2023-State Tax dated 11th July, 2024(hereinafter‘impugnednotification’)andinadvertently,theCentral

notifications have been attached. Let copies of the impugned notifications behanded over to the Court Master today itself. The same shall be taken onrecord.

4.The validity of the impugned notifications was under considerationbefore this Court in batch of petitions with the lead petition being W.P.(C)16499/2023 titled ‘DJST Traders Pvt. Ltd. vs. Union of India and Ors.’. Inthe said batch of petitions, on 22nd April, 2025, the parties were heard atlength qua the validity of the impugned notification and accordingly, thefollowing order was passed:

“4.Submissions have been heard in part. The broadchallenge to both sets of Notifications is on the groundthat the proper procedure was not followed prior to theissuance of the same. In terms of Section 168A, priorrecommendation of the GST Council is essential forextending deadlines. In respect of Notification no.9, therecommendation was made prior to the issuance of thesame. However, insofar as Notification No. 56/2023(Central Tax) the challenge is that the extension wasgranted contrary to the mandate under Section 168A ofthe Central Goods and Services Tax Act, 2017 andratification was given subsequent to the issuance of thenotification. The notification incorrectly states that itwas on the recommendation of the GST Council. Insofaras the Notification No. 56 of 2023 (State Tax) isconcerned, the challenge is to the effect that the samewas issued on 11th July, 2024 after the expiry of thelimitation in terms of the Notification No.13 of 2022(State Tax).

5.In fact, Notification Nos. 09 and 56 of 2023(Central Tax) were challenged before various otherHigh Courts. The Allahabad Courthas upheld thevalidity of Notification no.9. The Patna High Court hasupheld the validity of Notification no.56. Whereas, theGuwahati High Court has quashed Notification No. 56

of 2023 (Central Tax).

6.The Telangana High Court while not delvinginto the vires of the assailed notifications, made certainobservations in respect of invalidity of Notification No.56 of 2023 (Central Tax).This judgment of theTelanganaHighCourtisnowpresentlyunderconsideration by the Supreme Court in S.L.P No4240/2025 titled M/s HCC-SEW-MEIL-AAG JV v.Assistant Commissioner of State Tax & Ors. TheSupreme Court vide order dated 21st February, 2025,passed the following order in the said case:

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

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

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

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

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

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

7. Dr. Muralidhar pointed out that there is acleavage of opinion amongst different HighCourts of the country. 8. Issue notice on the SLPcleavage of opinion amongst different HighCourts of the country. 8. Issue notice on the SLP

as also on the prayer for interim relief, returnableon 7-3-2025.”

7.In the meantime, the challenges were also pendingbefore the Bombay High Court and the Punjab andHaryana High Court. In the Punjab and Haryana HighCourt vide order dated 12th March, 2025, all the writpetitions have been disposed of in terms of the interimorders passed therein. The operative portion of the saidorder reads as under:

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

66. Keeping in view the judicial discipline, werefrain from giving our opinion with respect tothe vires of Section 168-A of the Act as well asthe notifications issued in purported exercise ofpower under Section 168-A of the Act whichhave been challenged, and we direct that allthese present connected cases shall be governedby the judgment passed by the Hon'ble SupremeCourt and the decision thereto shall be bindingon these cases too.refrain from giving our opinion with respect tothe vires of Section 168-A of the Act as well asthe notifications issued in purported exercise ofpower under Section 168-A of the Act whichhave been challenged, and we direct that allthese present connected cases shall be governedby the judgment passed by the Hon'ble SupremeCourt and the decision thereto shall be bindingon these cases too.

67. Since the matter is pending before theHon'ble Supreme Court, the interim orderpassed in the present cases, would continue tooperate and would be governed by the finaladjudication by the Supreme Court on the issuesin the aforesaid SLP-4240-2025.Hon'ble Supreme Court, the interim orderpassed in the present cases, would continue tooperate and would be governed by the finaladjudication by the Supreme Court on the issuesin the aforesaid SLP-4240-2025.

68. In view of the aforesaid, all these connectedcases are disposed of accordingly along withpending applications, if any.”cases are disposed of accordingly along withpending applications, if any.”

8.The Court has heard ld. Counsels for the

parties for substantial period today. perusal of theabove would show that various High Courts havetaken view and the matter is squarely now pendingbefore the Supreme Court.above would show that various High Courts havetaken view and the matter is squarely now pendingbefore the Supreme Court.

9.Apart from the challenge to the notificationsitself, various counsels submit that even if the same areupheld, they would still pray for relief for the partiesas the Petitioners have been unable to file replies dueto several reasons and were unable to avail of personalhearings in most cases. In effect therefore in most-cases the adjudication orders are passed exparte.Huge demands have been raised and even penaltieshave been imposed.10.Broadly, there are six categories of cases whichare pending before this Court. While the issueconcerning the validity of the impugned notificationsis presently under consideration before the SupremeCourt, this Court is of the prima facie view that,depending upon the categories of petitions, orders canbe passed affording an opportunity to the Petitionersto place their stand before the adjudicating authority.Insomecases,proceedingsincludingappellateremedies may be permitted to be pursued by thePetitioners, without delving into the question of thevalidity of the said notifications at this stage.11.The said categories and proposed reliefs havebeen broadly put to the parties today. They may seekinstructions and revert by tomorrow i.e., 23rd April,2025.”

5.Thereafter, on 23rd April, 2025, this Court, having noted that thevalidity of the impugned notifications is under consideration before theSupreme Court, had disposed of several matters in the said batch of petitionsafter addressing other factual issues raised in the respective petitions.Additionally, while disposing of the said petitions, this Court clearly observedthat the validity of the impugned notifications therein shall be subject to theoutcome of the proceedings 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.

6.However, in cases where the challenge is to the parallel StateNotifications, 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.

7.On the facts of the present case, the SCN was issued to the Petitioneron various grounds including in respect of reconciliation of GSTR-01 andGSTR-3B as also excess claim of Input Tax Credit. reminder was issued on29[th]February, 2024 and reply was filed on 9[th]March, 2024. The case of thePetitioner is that along with the said reply various documents were also filedand the Petitioner’s authorized representative had also attended the personalhearing. However, the impugned order has been passed without consideringthe reply of the Petitioner.

8.Ld. Counsel for the Petitioner has handed across the returns in FormGSTR-1 and GSTR-3B and the same are taken on record. He submits that, infact, in the GSTR-01, by mistake the amount of total taxable value under B2Cwas reflected as Rs. 18,74,65,561/-, whereas in the GSTR-3B the amount wascorrectly mentioned as Rs. 1,06,31,785/-. It is submitted by the ld. Counselfor the Petitioner that this was due the inadvertent mistake made by thePetitioner’s accountant and it was on the said basis that the SCN itself cameto be issued.

9.Ld. Counsel for the Department submits that the impugned order hasbeen challenged very belatedly, in fact one and half years later. He submitsthat the Petitioner has already appeared for the personal hearing and hasexplained its position to the Adjudicating Authority, subsequent to which, theimpugned order has been passed. Thus, the Petitioner ought to be relegated to

pursue the appellate remedy.

10.The Court has considered the matter. The returns which have beenhanded over i.e., GSTR-01 and GSTR-3B show completely different figuresand the question as to which of the figures is correct would have to beascertained after going through all the documents which the Petitioner mayfile. In the opinion of the Court, this would also require factual analysiswhich cannot be done in this writ petition.

11.Accordingly, the Petitioner is relegated to avail of the appellate remedy.Let the appeal be filed by 15[th]October, 2025 along with the requisite pre-deposit. If the same is filed by the said date, it shall not be dismissed on theground of limitation and shall be considered on merits.

12.The order of the Appellate Authority shall be subject to the outcome ofthe decision of the Supreme Court and of this Court in W.P.(C) 9214/2024titled ‘Engineers India Limited v. Union of India & Ors’.

13.At this stage, ld. Counsel for the Petitioner submits that he may bepermitted to rectify the returns. The limitation for the same has alreadyexpired, however, if there is any remedy in law for the Petitioner to file arectified return, he is permitted to do so.

14.The petition is disposed of in these terms. Pending applications, if any,are also disposed of.

PRATHIBA M. SINGHJUDGE

AUGUST 26, 2025dj/msh

SHAIL JAINJUDGE