Summary: The Gauhati High Court invalidated CGST Notification No. 56/2023-CT in the case Barkataki Print And Media Services Vs Union Of India And 4 Ors., citing it as ultra vires to Section 168A of the CGST Act, 2017. The notification extended time limits for issuing tax orders under Section 73(10) but lacked the mandatory GST Council recommendation. The court emphasized that such recommendations are essential, as the council is an expert body responsible for GST-related decisions. Additionally, the government’s reliance on the COVID-19 pandemic as a force majeure justification was dismissed, as normalcy had returned by late 2023. The judgment also underscored constitutional concerns regarding cooperative federalism and the equal legislative powers of Parliament and state legislatures under Article 246A. Notifications extending deadlines must adhere to these principles, which were ignored. Assam’s corresponding notification aligned only with the earlier Notifications No. 9/2023-CT and did not follow the further extensions in Notification No. 56/2023-CT. Consequently, state GST orders relying on the voided notification were also invalidated. The court ruled that the extension was a colorable exercise of power and reiterated that COVID-19 could no longer justify emergency measures. It declared all tax orders issued after 31 March 2024 (for FY 2018-19) and 1 July 2024 (for FY 2019-20) void, marking a critical judgment in GST law.
Let first understand the issue before going deep into the facts and other details.
1. Section 44 of the Central Act stipulates the requirement of filing of the Annual Return for every financial year in FORM GSTR-9 on or before the 31st day of December following the end of such financial year, through the common portal.
2. If your filed return has some issue like tax not paid, short paid, error refund, wrong ITC availment for any reason other than fraud, or any wilful-misstatement or suppression of facts, then you will be assessed u/s 73, if there is any fraud or any wilful-misstatement or suppression of facts in that case assessee will be assessed u/s 74.
3. Section 73 of the Central Goods and Services Tax Act, 2017, deals with the determination of tax not paid or short paid or erroneously refunded, or input tax credit wrongly availed or utilized. In this case proper officer will determine tax, then issue Notice/s 73(2) and other formality (please read whole section) and in final will pass the final order u/s 73 (10) if there is any tax liability is determined along with Interest and Penalty.
4. Section 73(2) which stipulates that the proper Officer shall issue the Notice for tax liability at least three months prior to the time limit specified in Section 73(10) for issuance of order. (Do note, here section time limit depends upon the date of issuance of Order u/s 73(10).
5. Section 73(10) of the Central Act as well as the State Act stipulates that the proper Officer shall issue the order within Three years from the due date for furnishing the Annual Return for the Financial Year.
6. The date of annual return for FY 17-18, 18-19 and 19-20 were extended many times by the recommendation of the GST Councils for various reason, which ultimately extends the date of issuance of order u/s 73 of CGST act, 2017, the same is depicted in table given below for better understanding-
| Notification No. for Extending due date for Annual Return | Date of Notification | Financial Year | Due date of annual return as per the Notification. | Last date for issuance of Notice under Section 73(2) | Last date for issuance of order under Section 73(10) |
| No. 6/2020-CT | 03/02/2020 | 2017-18 | 07/02/2020 | 07/11/2023 | 07/02/2023 |
| No. 80/2020-CT | 28/10/2020 | 2018-19 | 31/12/2020 | 30/09/2023 | 31/12/2023 |
| No. 4/2021-CT | 28/02/2021 | 2019-20 | 31/03/2021 | 30/12/2023 | 31/03/2024 |
7. Below graph shown the timeline for issuance of Order and Notice u/s 73 assuming Annual return filing date is 31/12/2021.
8. After the extension of annual return filing date, The GST Council in its 49th Meeting recommended extension of the time limit under Sub-Section (10) of Section 73 of the Central Act for Financial Years 2017-18, 2018-19 and 2019-20 for only three months.
9. On the basis of the said recommendation, the Notification No.9/2023-CT was issued on 31st of March 2023 whereby the period for passing the order in terms of Section 73(10) was extended for FY 2017-18: up to 31/12/2023, for FY 2018-19: up to 31/03/2024 and for FY 2019-20: up to 30/06/2024, so before passing order notice should be given at least 3 months before.
10. Do note, above extension was only given for issuance of order u/s 73(10), not for annual return filing which was already feezed as given in above table.
11. For passing order u/s 73 (10), notice must be issued before 3 months earlier, the last date for issuance of order u/s 73(10) for FY 18-19 is on 31/03/2024 as per the Notification No.9/2023-CT, accordingly Notice must be issued at least 3 months before i.e. before 31/03/2023.
12. Again, the Central Government issued the Notification No.56/2023-CT on dated 28.12.2023 thereby extending the time limit for passing of the order under Section 73(10) for the FY 2018-19 up to 30th April, 2024 and for the FY 2019-20 up to 31st August, 2024. Eventually time limit for issuing Notice u/s 73(2) will be 31/01/2024 and 31/05/2024 (Here FY 2017-18 was not part of the extension).
13. If you have notice, the date of notification no.56/2023-CT is on 28/12/2023 and i.e. Just 3 days before 31/12/2024 for issuance of Notice as per earlier Notification (No.9/2023-CT), accordingly it will give 1 more month time to GST officials for issuing any pending Notice u/s 73(2).
14. It is pertinent to mention herein that in spite of the fact that there was no recommendation from the GST Council but in the Notification No. 56/2023-CT, the Central Government had used the phrase “on the recommendation of the Council”.
15. So, the case is revolving around this issue weather recommendation of GST Council is mandatory or not for issuing any notification.
Key Legal Issues Analysed
1. Ultra Vires Exercise of Power by the Central Govt.: No GST Council Recommendation
- Section 168A of CGST Act, 2017 grants power to extend statutory deadlines only on the recommendation of the GST Council in special cases i.e. Force majeure.
- The major focus of this case was that Is Recommendation is mandatory or not, since Recommendation word is not properly defined in the law, court rules that GST council recommendation is Mandatory as they are the body who are expertise in GST Matters.
- The GST Council never recommended Notification No. 56/2023-CT, still the notification falsely stated by the Govt. as that it was issued “on the recommendation of the Council.” However, they admitted later this.
- The High Court also said that this a colorable exercise of power by the Central, and declare the notification void ab initio.
2. Force Majeure situation like Covid-19 Pandemic arguments not Justified by the Govt.
- Section 168A defines “force majeure” as war, epidemic, natural disasters, etc. like situations-like Coronavirus pandemic which is termed as “force majeure”.
- The government argued COVID-19 disruptions till the end of year 2023 and justified the extension, but petitioner said that every thing was already normalised in all over the word, in every department and sector by this date i.e. 28/12/2023, Covid-19 argument is not justified by the government.
- The court rejected the argument of the government, stating that by late 2023, the pandemic no longer affected tax administration, making the notification unjustifiable.
Bottom Line: You can’t keep blaming COVID forever. The government needs fresher justifications for emergency measures
3. Constitutional & Federalism Concerns
- Article 246A (Concurrent GST Legislation)
- Both Parliament and State Legislatures have equal legislative power over GST.
- Any extension of time limits must align with cooperative federalism principles.
- Article 279A (GST Council’s Role)
- The GST Council’s role is to harmonize tax policies across India and resolve disputes between the central government and states or between states, Reviews and revises GST provisions to adapt to economic changes as per the need.
- This ruling reinforces that GST Council recommendations are a mandatory prerequisite for extending tax deadlines.
4. Implications for State GST Orders
- Assam issued Notification dated 06.09.2024, extending deadlines only up to the period covered in Notification No. 9/2023-CT (dated 31.03.2023).
- The State did not issue a corresponding notification for the further extension under Notification No. 56/2023-CT.
Result:
1. Set Aside the Impugned (Disputed) Orders-in-Original on the basis of declaring notification No. 56/2023-CT is ultra-virus the provisions of Section 168A of Central A ct.
2. All State GST orders passed after 31.03.2024 (for FY 2018-19) and 01.07.2024 (for FY 2019-20) are void.
Do note, below notification are issue for extension for issuing order u/s 73(10), not for extension of annual return, those are already extended by the department which is given above, do not get confused.
Timeline of Key Notifications & Circulars
| Notification | Date of Notification | Purpose |
| Notification No. 9/2023-CT | 31.03.2023 | Extended time limits for issue of Order u/s 73 (10):-
2017-18: up to 31/12/2023 2018-19: up to 31/03/2024 2019-20: up to 30/06/2024 |
| Notification No. 56/2023-CT | 28.12.2023 | Further extended time limits without GST Council recommendation.
Extended time limits for: – 2017-18: not applicable, so final date is 31/12/2023. 2018-19: up to 30/04/2024 (by 1 month Only) 2019-20: up to 31/08/2024 (by 2 months Only) |
| State GST Notification (Assam) | 06.09.2024 | State Issued Mirrored Notification same as No. 9/2023-CT, but not for No. 56/2023-CT, so state can not issue order on the basis of Centre Notification by virtue of 56/2023. |
| CBIC Circular No. F.No. CBIC-20/10/07/2021-GST/516 | 14.05.2024 | Admitted that Notification No. 56/2023-CT was issued without GST Council recommendation and would be placed before the next GST Council meeting for ratification. (but it was never places in any meeting) |
Chart: Impact on Assessment Orders Due to Invalid Notification
The following chart illustrates how illegal extensions led to tax orders being issued beyond the legal time limits:
| Financial Year | Original Order date issued by the officer u/s Section 73(10) | Extended Due Date Under Notification No. 9/2023-CT for issuance of Order u/s 73(2) | Further Extended Due Date Under Notification No. 56/2023-CT (Now Invalid) | Orders Issued After Invalid Extension? |
| 2017-18 | 30/12/2023
(Issued by the officer) |
31/12/2023 | Not issued | Orders valid (under Notification No. 9/2023-CT since it is issued before 31/12/2023). |
| 2017-18 | 01/01/2024
(Issued by the officer) |
31/12/2023 | Not issued | Orders not valid (under Notification No. 9/2023-CT since it is issued after 31/12/2023). |
| 2018-19 | 30/03/2024 | 31.03.2024 | 30.04.2024 (Invalid by the HC Rulling) | Orders valid (under Notification No. 9/2023-CT since it is issued before 31/03/2024 |
| 2018-19 | 01/04/2024 | 31.03.2024 | 30.04.2024 (Invalid by the HC Ruling) | Orders Invalid, since it is issued after 31.03.2024 are void. |
| 2019-20 | 29/06/2024 | 30.06.2024 | 31.08.2024 (Invalid by the HC Ruling) | Orders valid (under Notification No. 9/2023-CT since it is issued before 30/06/2024 |
| 2019-20 | 01/07/2024 | 30.06.2024 | 31.08.2024 (Invalid by the HC Ruling) | Orders Invalid, since it is issued after 30.06.2024 are void. |
Key Legal Precedents Cited by the Court
1. Mohit Minerals Pvt. Ltd. v. Union of India (2022) 10 SCC 700
- Supreme Court held GST Council recommendations are not binding in all cases. However, the court emphasized that when a statute or act explicitly mandates action based on GST Council recommendations (like Section 168A), such recommendations become mandatory for everyone.
2. V.M. Kurian v. State of Kerala (2001) 4 SCC 215
- The Supreme Court ruled that when a law requires an administrative body to act “on recommendation”, such recommendation is a condition precedent.
- Applied to Section 168A, this means no GST Council recommendation = no valid extension.
Impact on Businesses and Takeaways for Tax Consultants
1. Taxpayers can challenge all assessments order issued under Notification No. 56/2023-CT after the legally allowed time limits.
2. Refund claims possible for taxes paid under invalid orders.
3. Ongoing assessments based on this notification must be quashed before adjudicating authorities.
4. Taxpayers should be advised to check orders issued date if they are post-31.03.2024 (FY 2018-19) and post-30.06.2024 (FY 2019-20).
Conclusion: GST Council recommendations are mandatory where it required by law and justification as force majeure i.e. Coronavirus Pandemic disruption till the end of year 2023 cannot be interpreted to justify deadline extensions against such disruption which is already normalised till end of 2023 in every corner.
Would you like any additional refinements, such as potential SC appeal outcomes or deeper analysis on force any other judgement?
Link:
1. Notification 9/2023-CT https://taxguru.in/goods-and-service-tax/gst-time-limit-section-7310-issuing-order-increased-3-months.html
2. Notification 56/2023-CT https://taxguru.in/goods-and-service-tax/gst-notice-time-limit-financial-years-2018-19-2019-20-extended.html
3. Judgement: https://taxguru.in/goods-and-service-tax/gst-notification-no-56-2023-ct-ultra-vires-unsustainable-gauhati-hc.html
Author Bio
Sir,
Also refer the case titled Brunda Infra Pvt. Ltd. v. Additional Commissioner of Central Tax(Tel)(2025) 43 J.K.Jain’s GST & VR 65
CA Om Prakash Jain s/o J.K.Jain, Jaipur
Tel 9414300730/9462949040/01413584043