Judgment
01.09.2026 ct no. 10 08 AGM
WPA 12383 of 2026
Dipankar Mitra -Versus- Assistant Commissioner of Revenue, State Tax, Suri Charge & Ors.
Mr. Sandip Choraria.
Mr. Akash Chakraborty.
Mr. R. Manna.
Mr. Gunja Verma.
…for the petitioner.
Mr. Shiv Shankar Banerjee.
Mr. Tapan Bhanja.
… for the CGST Authority.
Mr. Vipul Kundalia. Sr. Adv.
Mr. Avinash Kankani.
Mr. Shagnik Mukherjee.
Mr. Anindya Kanan.
Mr. Dhirodatto Chaudhuri.
… for the State respondent.
1. State respondent remains unrepresented in Court today.
2. The petitioner in the instant case challenges inter alia, the vires of the notification No. 09/2023 Central Tax corresponding to State Notification No.
599-FT and Annexure P/8 issued in contravention and/or in derogation to Section 73 CGST/WBGST Act, 2017 and in excess of power under Section 168A CGST/WBGST Act, 2017 (hereinafter referred to as the said Act).
3. The core issue involved in the present case as to whether the time limit for issuance of order under 2 Section 73(9) for Financial Year 2018-19 can be
2 extended retrospectively by notification under Section 168A thereby defeating the 3 year limitation under Section 73(10) of the said Act.
4. According to the petitioner, ordinarily no proceeding for the tax period 2018-2019 could have been initiated against the petitioner after three years from due date of furnishing returns, however, in the present case the respondents on the strength of the notifications dated 5th July, 2022, 31st March, 2023, 28th December, 2023 and 31st January, 2024 issued by the Central Board of Indirect Taxes and Customs, whereby the time limit as specified in Section (10) of Section 73 of the said Act for issuance of the order under sub-Section 9 of Section 73 in the said Act for recovery of Tax not paid or short paid or input tax credit wrongly availed or utilized relating to the period as specified in the said notification, had been extended, proceeded with the determination of liability for the Tax period April 2018 to March 2019. The said period for passing an order under Section 73(9) of the said Act has been further extended by a notification dated 31st March, 2023.
5. Mr. Choraria, learned counsel appearing for the petitioner by referring to Section 168A of the said Act submits that the said Section has been introduced with effect from 31st March, 2020, whereunder a power has been conferred on the 3 government to extend the time limit prescribed or
3 notified under the said Act, in special circumstances in respect of actions which cannot be completed or complied with due to force majeure. The aforesaid notifications could not have been relied on for initiation of fresh proceeding. By referring to the order dated 28th March, 2024 is submitted that when the show cause cum demand notice under Section 73 of the said Act was issued on 14th September, 2024 since, there was no force majeure prevailing at that time, the respondents could not have relied on the aforesaid notifications for extending the time for initiation of proceeding in the year 2023.
In any event, based on the above notifications no fresh proceedings could have been issued.
According to the petitioner, the aforesaid notifications as also the aforesaid show cause notice and the adjudication order had been issued in colorable exercise of power.
In such circumstances, Mr. Choraria prays for a stay of the adjudication order dated 28th March, 2024 and the consequential demand.
6. It is further submitted that on 11th March, 2026 a recovery notice has been issued under Sections 79(1) (c) in Form GST DRC-13 by freezing the bank account of the petitioner (Bank of India, Dangalpara Brach).
7. The identical issue herein is already pending before the Hon’ble Apex Court in the case of M/s.
4 HCCSEW-MEIL-AAG JV vs.
Assistant Commissioner of State Tax & Ors., which is re- produced below:- “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 (Telengana 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.”
8. It is further submitted that freezing of bank account via DRC 13/bank attachment during the pendency of challenging the vires is unjust and harsh. Since the identical issue is pending before the Hon’ble Appex Court whether Section 168 A can extend the time for Section 73 for Financial Year 2018-19, the petitioner prays for quashing and to defreeze the bank account.
9. Mr. Vipul Kundalia, learned senior counsel appearing for the respondent nos. 1 to 3 submits that the petitioner has approached this Court at a very belated stage on 08.06.2026, after expiry of the statutory appeal period under Section 107 of the said Act.
10. Learned counsel raises an objection with regard to the maintainability of the instant writ petition since an efficacious alternative statutory remedy is 5 available to the petitioner by way of filing an appeal with 10% pre-deposit.
5 11. It is further submitted that Section 168A is a valid provision to extend time during pandemic disruption. The notifications are valid delegated legislation and are procedural and not substantive.
12. Mr. Vipul Kundalia, prays for a direction to file affidavit-in-opposition.
13. Having heard the parties, and upon perusing the materials available on records, this Court is prima facie satisfied with the submissions made by the petitioner and warrants an interference at this stage.
14. A substantial question of law has been raised regarding the scope of Section 168A and its impact on the limitation under Section 73(10) for Financial Year 2018-19.
15. A Coordinate Bench of this Court in WPA 30984 of 2024 Ajay Kumar Jaiswal vs. The Assistant Commissioner State Tax & Ors. was pleased to grant limited interim relief in an identical matter with an observation that:
“Taking into consideration, the fact that a jurisdictional issue has been raised and a prima facie case has been made out by the petitioner and the fact that a coordinate Bench of this Court by an order dated 21st March, 2024 in an identical matter in the case of OSL Exclusive Pvt.
Ltd. vs. Union of India & Ors.
reported in 2024 SCC Online Cal 2826 had been pleased to pass a limited interim order. I do hereby stay the impugned demand made in the order dated 20th 6 May, 2024
6 annexed till 31st May, 2025 or until further order whichever is earlier.”
16. Since the identical issue is pending before the Hon’ble Supreme Court in M/S HCC-SEW- MEILAAG JV vs. ASSISTANT COMMISSIONER OF STATE TAX & ORS. this court keeps the matter adjourned till December, 2026 to avoid conflicting decisions.
17. In the meantime, the respondent authorities are restrained from taking any coercive steps subject to the petitioner depositing an amount of Rs.25,594/- being 10% of the disputed demand of tax of Rs. 2,55,938/-.
18. It is made clear that the bank account shall be defreezed forthwith upon satisfaction of the authority regarding payment of 10% of the disputed demand of tax. De-freezed shall be done within 72 hours of payment and communication to respondent no. 1.
19. Respondents shall file affidavit in opposition within six weeks, reply if any, four weeks thereafter.
20. Let the matter be listed in the monthly list of December, 2026.
(Smita Das De, J.)