The Hon’ble Calcutta High Court in the case of Amar Nath Jaiswal v. Assistant Commissioner of State Tax [Writ Petition Application No. 1860 of 2025 dated April 23, 2025] stayed the order till next date wherein the order was passed for 2019-20 on August 28, 2024 i.e. beyond the statutory time limit which was prescribed under Section 73(10) of the Central Goods and Services Tax Act, 2017 (“the CGST Act”). The Order was challenged on same by Assessee on ground that there was no force majeure prevailing for invoking Section 168A of the CGST Act for extension of limitation period up to August 31, 2024.
Facts:
Mr. Amar Nath Jaiswal (“the Petitioner”) were served a Show cause Notice (“SCN”) which the Petitioner had duly responded and had categorically stated that the purchases were made with the suppliers whose registration had been cancelled retrospectively had been done in regular course of business and in good faith. To substantiate the same not only invoices of the suppliers, but ledgers and e-way bills for the relevant period in respect were also disclosed.
However, an Order dated August 28, 2024 (“the Impugned Order”) was passed under Section 73 of the West Bengal Goods and Services Tax Act, 2017 (“the WBGST Act”) in respect of the tax period April, 2019 to March, 2020, on the ground that the Impugned order was passed beyond statutory period as provided for in Section 73(10) of the CGST Act.
The Petitioner contended that Notification No. 95/2020-Central Tax dated December 30, 2020 (“the Notification-1”) was issued on the basis of the recommendations made by the 42nd GST Council in exercise of powers under Section 44(1) of the CGST Act, which had extended the time limit for furnishing the annual returns specified under Section 44 of the CGST Act read with Rule 80 of the Central Goods and Services Tax Rules, 2017 (“the CGST Rules”), electronically through the common portal for the financial year 2019-20 till February 28, 2021.
According to the Petitioner, a further a Notification No. 04/2021-Cental Tax dated February 28, 2021 (“the Notification-2”), the above period was extended till March 31, 2021. The extension of the aforesaid period has the effect of enabling the authorities to pass an order under Section 73(9) of the CGST Act within the aforesaid extended period.
In the instant case, however, the Respondents by invoking the powers under Section 168A of the CGST Act through two i.e. Notification No. 09/2023 Central Tax dated March 31, 2023 (“the Notification-3”) and Notification No. 56/2023 Central Tax dated December 28, 2023 (“the Notification-4”) had extended the date of passing of the order under Section 73(9) of the CGST Act in respect of the financial year 2019-20 up to August 31, 2024.
Hence, aggrieved by the Impugned Order the Petitioner filed the Writ Petition
Issue:
Whether there is any extension of time limit for passing order under Section 73(9) of the CGST Act in absence of force majeure ?
Held:
The Hon’ble Calcutta High Court in Writ Petition Application No. 1860 of 2025 held as under:
- Observed that, the Petitioner’s return filing period was extended only up to March 31, 2021, the extended timeline under Section 168A was challenged for lack of any force majeure. Since there was no force majeure condition prevailing by invoking the aforesaid provision and extending the period and on such ground not only the order passed under Section 73(9) of the CGST Act is unsustainable, the Notification-3 and the Notifcation-4 are also bad and cannot be sustained.
- Noted that, the Impugned Order passed under Section 73(9) of the CGST Act, although the proper officer had accepted the explanation given the Petitioner in respect of two suppliers, in respect of one particular supplier, namely Shree Shyam Iron Steel Trading Company, without assigning any reason of the reversal of ITC was upheld. This according to the Petitioner is a failure to exercise jurisdiction. In the fact, as noted hereinabove, the Petitioner would submit that the Impugned Order passed is not sustainable and should be set aside pending hearing of this writ petition, the same should be stayed.
- Held that, the Impugned Order shall remain stayed until the next date of hearing, and the matter is adjourned to April 28, 2025.
The matter was before the Calcutta High Court on May 5, 2024, wherein it was held that the interim order passed on April 23, 2024 shall continue till December 2025 or until further orders which ever is earlier.
Our Comments:
Section 168A of the CGST Act, prescribes that “Power of Government to extend time limit in special circumstances”. It was inserted vide The Taxation and Other laws (Relaxation and Amendment of Certain provisions) Act, 2020 dated September 29, 2020.
Section 168A (1) of the CGST Act prescribes that the Government may, on the recommendations of the Council, by notification, extend the time limit specified in, or prescribed or notified under, the CGST Act in respect of actions which cannot be completed or complied with due to force majeure. Section 168A (2) of the CGST Act prescribes that the power to issue a notification under Section 168A(1) of the CGST Act shall include the power to give retrospective effect to such notification from a date not earlier than the date of commencement of this Act.
The explanation to Section 168A clearly provides that the expression “force majeure” means a case of war, epidemic, flood, drought, fire, cyclone, earthquake or any other calamity caused by nature or otherwise affecting the implementation of any of the provisions of the CGST Act.
In pari materia case, the Hon’ble Madras High Court in the case of Tvl. N.V.R. Sons v. Union of India [W.P.(MD) No. 9947 of 2025] held that the exercise of powers under Section 168A of the CGST Act recognize as appropriate given exceptional circumstances and did not violate natural justice.
The assessee challenged the Notification-4, and the assessment order under Section 73(9) for the Assessment Year 2018-2019, claiming these were arbitrary, without jurisdiction, and violated Section 168A of the Tamil Nadu Goods and Services Tax Act, 2017 (“the TNGST Act”) and Articles 14 and 19(1)(g) of the Constitution of India.
The Assessee argued that Section 168A of the CGST Act was meant for extraordinary circumstances like the COVID-19 pandemic, initially extended through the impugned notifications and assessment order did not align with the purpose of Section 168A of the CGST Act, failing to consider the post-pandemic recovery period and adequate compliance time already provided.
The court held that the impugned notifications and assessment order were valid and issued in accordance with the provisions of the CGST Act, and the constitutional framework. The exercise of powers under Section 168A of the CGST Act and TNGST Act was found to be appropriate, with due consideration of exceptional circumstances. The respondents acted within their jurisdiction, did not violate the principles of natural justice or the Assessee’s fundamental rights under Articles 14 and 19(1)(g) of the Constitution of India, and the writ petition was dismissed.
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