Delhi High Court – Orders
M/S Avik Polymers vs Additional Commissioner, Cgst, Delhi … on 20 August, 2025
Author: Prathiba M. Singh
Bench: Prathiba M. Singh
$~22 to 25, 28-30
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ W.P.(C) 5644/2025 & CM APPL. 25703/2025
M/S AVIK POLYMERS .....Petitioner
Through: Mr. Kunal Jha, Adv.
versus
ADDITIONAL COMMISSIONER, CGST, DELHI
NORTH .....Respondent
Through:
23 WITH
+ W.P.(C) 5657/2025 & CM APPL. 25781/2025
M/S KAMDHENU PLASTIC INDUSTRIES .....Petitioner
Through: Mr. Kunal Jha, Adv.
versus
ADDITIONAL COMMISSIONER, CGST, DELHI NORTH CR
BUILDING, .....Respondent
Through: Ms. Anushree Narain, SSC and Mr.
Naman Choula, Adv.
24 WITH
+ W.P.(C) 5658/2025 & CM APPL. 25789/2025
M/S SHRI BALAJI PLASTIC .....Petitioner
Through: Mr. Kunal Jha, Adv.
versus
ADDITIONAL COMMISSIONER, CGST, DELHI
NORTH .....Respondent
Through: Ms. Anushree Narain, SSC and Mr.
Naman Choula, Adv.
25 WITH
+ W.P.(C) 5997/2025 & CM APPL. 27465/2025
M/S SHRIRAM ENTERPRISES .....Petitioner
Through: Mr. Kunal Jha, Adv.
versus
ADDITIONAL COMMISSIONER, CGST, DELHI
NORTH .....Respondent
Through: Ms. Anushree Narain, SSC and Mr.
Naman Choula, Adv.
28 WITH
+ W.P.(C) 6724/2025 & CM APPL. 30542/2025
W.P.(C) 5644/2025 & connected matters Page 1 of 8
This is a digitally signed order.
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M/S MANSI PLASTICS .....Petitioner
Through: Mr. Kunal Jha, Adv.
versus
ADDITIONAL COMMISSIONER, CGST, DELHI
NORTH .....Respondent
Through: Ms. Anushree Narain, SSC and Mr.
Naman Choula, Adv.
WITH
29
+ W.P.(C) 6839/2025 & CM APPL. 31003/2025
M/S SANJAY ENTEPRISES .....Petitioner
Through: Mr. Kunal Jha, Adv.
versus
ADDITIONAL COMMISSIONER, CGST, DELHI
NORTH .....Respondent
Through: Ms. Anushree Narain, SSC and Mr.
Naman Choula, Adv.
30 AND
+ W.P.(C) 7051/2025 & CM APPL. 31831/2025
M/S R.V ENTERPRISES .....Petitioner
Through: Mr. Kunal Jha, Adv.
versus
ADDITIONAL COMMISSIONER, CGST, DELHI
NORTH .....Respondent
Through: Ms. Anushree Narain, SSC and Mr.
Naman Choula, Adv.
CORAM:
JUSTICE PRATHIBA M. SINGH
JUSTICE SHAIL JAIN
ORDER
% 20.08.2025
1. This hearing has been done through hybrid mode.
2. The present petitions have been filed by the Petitioners under Article 226
of the Constitution of India, inter alia, assailing the Show Cause Notice dated
W.P.(C) 5644/2025 & connected matters Page 2 of 8
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23rd July, 2024 (hereinafter, ‘SCN’) as also the Order-in-Original dated 27th
January, 2025 (hereinafter, ‘impugned order’).
3. One major ground that is raised in the present petitions is that demands
for multiple years have been raised and considered in one SCN and impugned
order.
4 However, this issue has already been considered by this Court in the
decision of Ambika Traders Through Proprietor Gaurav Gupta V. Additional
Commissioner, Adjudication DGGSTI, CGST Delhi North, 2025:
DHC:6181-DB. The relevant portion of the said decision reads as under:
“Consolidated SCN for Multiple Financial Years
43. Insofar as the issue of consolidated notice for
various financial years is concerned, a perusal of
Section 74 of the CGST Act would itself show that at
least insofar as fraudulently availed or utilized ITC is
concerned, the language used in Section 74(3) of the
CGST Act and Section 74(4) of the CGST Act is “for
any period” and “for such periods” respectively. This
contemplates that a notice can be issued for a period
which could be more than one financial year. Similar
is the language even in Section 73 of the CGST Act.
The relevant provisions read as under:
“73. Determination of tax [, pertaining to the
period up to Financial Year 2023-24,] not
paid or short paid or erroneously refunded or
input tax credit wrongly availed or utilised
for any reason other than fraud or any wilful-
misstatement or suppression of facts.–
XXXX
(3) Where a notice has been issued for any
period under sub-section (1), the proper
officer may serve a statement, containing the
details of tax not paid or short paid or
erroneously refunded or input tax credit
wrongly availed or utilised for such periods
other than those covered under sub-sectionW.P.(C) 5644/2025 & connected matters Page 3 of 8
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(1), on the person chargeable with tax.
(4) The service of such statement shall be
deemed to be service of notice on such person
under sub-section (1), subject to the condition
that the grounds relied upon for such tax
periods other than those covered under sub-
section (1) are the same as are mentioned in
the earlier notice.
XXXX
74. Determination of tax [, pertaining to the
period up to Financial Year 2023-24,] not
paid or short paid or erroneously refunded or
input tax credit wrongly availed or utilised by
reason of fraud or any wilful misstatement or
suppression of facts.–
XXXX
(3) Where a notice has been issued for any
period under sub-section (1), the proper
officer may serve a statement, containing the
details of tax not paid or short paid or
erroneously refunded or input tax credit
wrongly availed or utilised for such periods
other than those covered under sub-section
(1), on the person chargeable with tax.
(4) The service of statement under sub-section
(3) shall be deemed to be service of notice
under sub-section (1) of section 73, subject to
the condition that the grounds relied upon in
the said statement, except the ground of fraud,
or any wilful-misstatement or suppression of
facts to evade tax, for periods other than those
covered under sub-section (1) are the same as
are mentioned in the earlier notice.”
44. Some of the other provisions of the CGST Act,
which are relevant, include Section 2(106) of the
CGST Act, which defines “tax period” as under
“2.[…] (106) “tax period” means the period
for which the return is required to be
furnished”
45. Thus, Sections 74(3), 74(4), 73(3) and 73(4) of the
W.P.(C) 5644/2025 & connected matters Page 4 of 8
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CGST Act use the term “for any period” and “for such
periods”. This would be in contrast with the language
used in Sections 73(10) and 74(10) of the CGST Act
where the term “financial year” is used. The said
provisions read as under:
“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 utilised relates to or within
three years from the date of erroneous refund”
“74.[…] 10) The proper officer shall issue the
order under sub-section (9) within a period of
five 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 utilised relates to or
within five years from the date of erroneous
refund.”
The Legislature is thus, conscious of the fact that
insofar as wrongfully availed ITC is concerned, the
notice can relate to a period and need not to be for a
specific financial year.
46. The nature of ITC is such that fraudulent
utilization and availment of the same cannot be
established on most occasions without connecting
transactions over different financial years. The
purchase could be shown in one financial year and the
supply may be shown in the next financial year. It is
only when either are found to be fabricated or the
firms are found to be fake that the maze of transactions
can be analysed and established as being fraudulent
or bogus.
47. A solitary availment or utilization of ITC in one
financial year may actually not be capable of by itself
establishing the pattern of fraudulent availment or
utilization. It is only when the series of transactions
are analysed, investigated, and enquired into, and a
consistent pattern is established, that the fraudulent
W.P.(C) 5644/2025 & connected matters Page 5 of 8
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availment and utilization of ITC may be revealed. The
language in the abovementioned provisions i.e., the
word `period’ or `periods’ as against `financial year’
or `assessment year’ are therefore, significant.”
5. The above decision has thus, decided the issue of consolidated notice
for multiple years.
6. In all these matters in case of availment of fraudulent Input Tax Credit
(hereinafter, ‘ITC’), there are several factual issues, which would need to be
looked into, which cannot be adjudicated in a writ petition. This view has
already been taken by this Court in several matters. Further, the Supreme
Court in the context of Central Goods and Service Tax Act, 2017, has, in
Civil Appeal No. 5121/2021 dated 3rd September, 2021 titled ‘The Assistant
Commissioner of State Tax & Ors. v. M/s Commercial Steel Limited’, held
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 a 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,W.P.(C) 5644/2025 & connected matters Page 6 of 8
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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”
7. The said legal position has also been reiterated by this Court in M/s
Sheetal and Sons & Ors. v. Union of India & Anr., (2025: DHC: 4057- DB)
and by the Allahabad High Court in Writ Tax No. 753 of 2023 titled ‘Elesh
Aggarwal v. Union of India‘ wherein the Allahabad High Court has held
that no ground is made for interference on merits in exercise of extra ordinary
jurisdiction. The relevant portion of the decision in M/s Sheetal and Sons &
Ors. (Supra) reads as under:
“15. The Supreme Court in the decision in Civil Appeal
No 5121 of 2021 titled ‘The Assistant Commissioner of
State Tax & Ors. v. M/s Commercial Steel Limited’
discussed the maintainability of a writ petition under
Article226. In the said decision, the Supreme Court
reiterated the position that existence of an alternative
remedy is not absolute bar to the maintainability of a writ
petition, however, a writ petition under Article 226 can
only be filed under exceptional circumstances….
xxx xxx
16. In view of the fact that the impugned order is an
appealable order and the principles laid down in theW.P.(C) 5644/2025 & connected matters Page 7 of 8
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abovementioned decision i.e. The Assistant Commissioner
of State Tax & Ors. (Supra), the Petitioners are relegated
to avail of the appellate remedy.”
8. Thus, this Court is of the opinion that the Petitioners deserve to be
relegated to the Appellate remedy and no interference is needed under writ
jurisdiction.
9. Accordingly, the present petition is disposed of with liberty given to
the Petitioner to file an appeal under Section 107 of the Central Goods and
Service Tax Act, 2017, before the Appellate Authority by 30th September,
2025, along with the requisite pre-deposit.
10. The access to the portal shall be made available to the Petitioner within
one week to download any documents which he may require. If the appeal is
filed by 30th September, 2025, it shall not be dismissed on the ground of
limitation and shall be adjudicated on merits.
11. The present petition is disposed of. Pending applications, if any, are
also disposed of.
PRATHIBA M. SINGH, J.
SHAIL JAIN, J.
AUGUST 20, 2025
Rahul/Ck
W.P.(C) 5644/2025 & connected matters Page 8 of 8
This is a digitally signed order.
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