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Judgment
Heard Mr. B. Krishna Reddy, learned counsel appearing for the petitioner; Mr. M.S. Achyuth Bharathwaj, learned Central Government Standing Counsel, appearing for respondent No.1; Mr. Dominic Fernandes, learned Senior Standing Counsel for Central Board of Indirect Taxes and Customs (CBIC), appearing for respondent No.3 and Mr. D. Raghavendra Rao, learned Senior Standing Counsel for CBIC, appearing for respondent Nos.2 and 4.
This Writ Petition is filed for the following relief:
“to issue a Writ or Order or Direction, more particularly one in the nature of MANDAMUS: - (i) Declaring Section 122 of the Central Goods and Services Tax Act, 2017 as Ultra Vires as the said Section being an independent section without machinery provision as to limitation for passing such order, as to the proper authority or the procedure, to be followed for issuing of show cause notice, call for reply, hearing etc. and therefore said section is illegal, manifestly arbitrary, violative of Article 14 of the Constitution of India, (ii) Declaring the action of the 4th respondent in passing the impugned composite Order-in-Original No.41/2025-26-Adjn.(JC)-HYD-GST dated 12.06.2025 and the action of the 3rd respondent in issuing the common Show Cause Notice No.64/2024-25 dated 10.06.2024 for the period from 2017-18 (Part), 2018-19, 2019-20 and 2020-21 under Section 122 of CGST Act, 2017 as Without jurisdiction, since the said order and the notice having been passed prior to the assignment of Proper Officer under Section 122 function by Circular No.254/11/2025-GST dated 27.10.2025, and are therefore void ab initio, and quash the same, and pass such other order or orders as this Hon'ble Court may deem fit and proper in the circumstances of the case and in the interest of justice.”
However, after some arguments, learned counsel for the petitioner seeks liberty to the petitioner to prefer an appeal against the impugned order. He submits that the petitioner may also be allowed to take the plea of non-requirement of pre-deposit in terms of amendment to the proviso to Section 107(6) of the Central Goods and Services Tax Act, 2017 (for short ‘the Act’), vide notification dated 17.09.2025, as the impugned order relates only to imposition of penalty for the subject tax period under Section 122 of the Act. He submits that some delay might have been occurred in preferring the appeal and therefore, the same may be directed to be considered sympathetically.
Both the learned Standing Counsel for CBIC submit that the petitioner was at liberty to prefer an appeal against the impugned order taking all the grounds as are available to it in law and on facts.
However, upon hearing learned counsel for the parties, since the petitioner seeks liberty to prefer an appeal, we do not wish to comment on the merits of the contentions raised by the parties.
Accordingly, we grant liberty to the petitioner to prefer an appeal within a period of two weeks with a delay condonation application. The petitioner may take all such grounds in law and on facts in the memo of appeal as are available to it, including non-requirement of pre-deposit by referring to the Circular, issued in terms of amendment to the proviso to Section 107(6) of the Act vide notification dated 17.09.2025. Needless to say, the appellate authority would take a decision on that plea and also consider the question of delay taking into account the facts and circumstances of the case and if it is satisfied on the point of delay, proceed to decide the appeal on merits in accordance with law.
The Writ Petition is, accordingly, disposed of with the aforesaid liberty. There shall be no order as to costs.
Miscellaneous applications pending, if any, shall stand closed.