Practice note · 2026-10-11 · By CA Arun Mehta
Their Clock, Not Yours: When the Department Runs Out of Time
Section 75(10) provides that the adjudication proceedings shall be deemed to be concluded if the order is not issued within the period in section 73(10), section 74(10) or section 74A(7). The period is three years from the annual-return due date for a section 73 demand and five years for section 74, both for periods up to the financial year 2023-24, and for the financial year 2024-25 onwards the notice must issue within forty-two months and the order within twelve months of the notice, extendable by six. Those deadlines were extended by notifications under section 168A, which requires both a recommendation of the GST Council and a force majeure. In Barkataki Print and Media Services the Gauhati High Court held on 18 September 2024 that Notification 56/2023-CT was issued without any Council recommendation, called it a colourable exercise of power, and quashed it as ultra vires. Other High Courts have declined to interfere, and the question is unsettled.
Most GST defences are built on the merits of the demand. The first question is cheaper than any of them, and it is the one taxpayers least often ask: was the order passed in time at all?
Section 75(10) does not say a late order is irregular, or voidable, or liable to be set aside on terms. It says this:
The adjudication proceedings shall be deemed to be concluded, if the order is not issued within the period specified in sub-section (10) of section 73 or in sub-section (10) of section 74 or in sub-section (7) of section 74A.
Concluded. If the order is late, the proceeding is over by operation of the statute, and the merits never arise. This part of the series is about that deadline, about the notifications that moved it, and about the litigation that has made a good many orders for 2017-18 to 2019-20 vulnerable.
The deadline is measured from the annual return, not from the notice
| Period | Order must issue within | Measured from |
|---|---|---|
| up to FY 2023-24, no fraud — section 73(10) | 3 years | the due date for furnishing the annual return for that year, or the date of the erroneous refund |
| up to FY 2023-24, fraud — section 74(10) | 5 years | the same |
| FY 2024-25 onwards — section 74A(7) | 12 months from issue of the notice, extendable by 6 months | the notice, not the annual return |
Two further limits belong in the same note. Where an order has to be passed to give effect to a direction of the Appellate Authority, the Tribunal or a court, section 75(3) allows two years from communication of that direction. And where a section 74 notice fails because fraud is not established, section 75(2) does not end the matter: the officer re-determines the tax as if the notice had been issued under section 73. The demand shrinks. It does not disappear.
Then the Government moved the deadline
Section 168A, inserted with effect from 31 March 2020, lets the Government extend time limits by notification. It is not an open power. It has two conditions on its face:
the Government may, on the recommendations of the Council, by notification, extend the time limit ... in respect of actions which cannot be completed or complied with due to force majeure.
The Explanation defines force majeure as "war, epidemic, flood, drought, fire, cyclone, earthquake or any other calamity caused by nature or otherwise". And sub-section (2) allows such a notification to be given retrospective effect.
Two notifications issued under that power matter to most practitioners' pending files: Notification 9/2023-CT dated 31 March 2023, and Notification 56/2023-CT dated 28 December 2023, which between them carried the section 73 deadline for the financial year 2018-19 out to 30 April 2024.
Both have been attacked. One of them has been struck down.
Gauhati: 56/2023 is a colourable exercise of power
In Barkataki Print and Media Services v. Union of India, decided 18 September 2024 and reported at (2025) 139 GSTR 602, the Gauhati High Court took the two conditions in section 168A seriously and found both missing.
On the recommendation, the Court had the department's own material. A communication to the field formations recorded, at clause 2.8.1, that there was no recommendation taken prior to the issue of Notification 56/2023-CT, and that the request would be placed before the GST Council "for ratification in the next meeting". The minutes of the 50th to 54th Council meetings carried no mention of it either. Yet the notification itself recited that it was issued "on the recommendations of the Council".
The Court's conclusion on that is worth quoting, because it is unusually blunt:
The Central Government knew that there was no recommendation from the GST Council and this aspect is clearly admitted. However, in the Notification No.56/2023-CT, the Central Government for reasons best known mentioned that "on the recommendations of the Council" which on the face of it shows that the exercise of power by the Central Government insofar as the Notification No.56/2023-CT is concerned is a colourable exercise of power for which the said Notification No.56/2023-CT is a colourable legislation.
On force majeure the Court was equally direct: the 49th Council meeting had recorded that there should be no further extension beyond three months, and because the notification never went to the Council at all, the Council had no occasion to consider whether a force majeure existed.
Holding the existence of a recommendation to be a sine qua non for the exercise of the power — drawing on the Supreme Court's analysis of what "recommendation" means in Mohit Minerals — the Court held Notification 56/2023-CT "ultra vires the Central Act", set it aside and quashed it. The orders under challenge, having been passed beyond section 73(10) once the extension fell away, were held to have been "passed without jurisdiction" and were quashed.
Gauhati has since applied that to fresh matters. In Brahmaputra Tele Productions Pvt Ltd v. Union of India, decided 28 July 2026, an order of 30 April 2024 for the financial year 2018-19 was held to be "in violation to Section 73 as well as Section 75 of the State Act" and was set aside and quashed.
Three things Barkataki did not do
This is where enthusiasm usually outruns the judgment, so it is worth being precise.
It did not quash Notification 9/2023-CT. The operative holding is confined to 56/2023-CT. The earlier notification was challenged on the force majeure ground, but the Court's declaration, and the consequential relief, rest on 56/2023 alone.
It did not close the door to a fresh notification. The standing counsel for both the CGST and SGST authorities expressly reserved the position that section 168A(2) permits a retrospective notification, and the Court recorded that submission before parting. A retrospective notification issued with a Council recommendation would meet the very defect Barkataki identified.
It is a State-specific decision in a field where the Central notification and the State notification are not the same thing. Part of the reasoning in Assam turned on the State having issued no pari materia notification for the relevant periods. Whether the same gap exists in your State is a question of fact to be checked, not assumed.
And other High Courts have gone the other way
The split is real, and a practitioner outside Gauhati should know which side binds the officer before leading on this.
The clearest account of where the courts stand is in Anil Kumar v. Sales Tax Officer, decided 21 January 2026, where a Division Bench of the Delhi High Court set out the position before disposing of the matter on an unrelated ground:
Notification Nos. 09 and 56 of 2023 (Central Tax) were challenged before various other High Courts. The Allahabad Court has upheld the validity of Notification no. 9. The Patna High Court has upheld the validity of Notification no. 56. Whereas, the Guwahati High Court has quashed Notification No. 56 of 2023 (Central Tax).
The Telangana High Court, the Bench added, made observations on the invalidity of Notification 56/2023 without deciding its vires.
A second line of defence has closed off a narrower but commoner argument. In M M Motors v. Senior Joint Commissioner of Revenue, decided 13 July 2026, the Calcutta High Court had an order digitally signed on 30 April 2024, the last day of the extended period, and uploaded on 1 May 2024, the day after. The taxpayer said it was out of time. Raja Basu Chowdhury J, assisted by an amicus curiae, answered three questions and dismissed the petition:
the period of limitation is confined to the issuance of the order and not on the service thereof
and
Admittedly, in this case, the order was issued within the period of limitation, the uploading of the order on the following date, following the issuance of the order does not render the same void or barred by limitation.
The Court distinguished the income-tax authorities on the point, because the Income-tax Act fixes limitation at both the decision stage and the order stage while the GST Act does not, and relied on Safari Retreats, (2025) 2 SCC 523, for the proposition that no foreign interpretation may be read into a taxing statute.
Two clocks, running from different events
M M Motors sits beside the Telangana Full Bench discussed in Part 1 of this series, and the two together give a clean rule that is easy to get wrong.
| Whose clock | Runs from | Authority |
|---|---|---|
| The department's time to pass the order | the issue of the order — signing it, not serving it | M M Motors, Calcutta |
| Your time to appeal or comply | the upload of the order on the common portal | the Telangana Full Bench in Swastik Enterprises |
They are not in conflict. They are different periods, measured from different events, and the gap between them belongs to the department. An order signed on the last day and uploaded a week later is, on these authorities, both in time and not yet running against you.
Where the question stands
The question is before the Supreme Court. In M/s HCC-SEW-MEIL-AAG JV v. Assistant Commissioner of State Tax, S.L.P. No. 4240 of 2025, the Court recorded on 21 February 2025 that the issue for consideration is
whether the time limit for adjudication of show cause notice and passing order under Section 73 of the GST Act and SGST Act (Telangana 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
noted that "there is a cleavage of opinion amongst different High Courts of the country", and issued notice on the petition and on the prayer for interim relief. That order is set out in full in Anil Kumar, which is where we have read it.
So the position is this. Notice has issued, the cleavage is on the record, and until the Supreme Court speaks the answer depends on which High Court binds your officer. Nothing in the decisions we have read records a stay of the Gauhati judgment, and a Special Leave Petition against the Delhi High Court's decision in Ambika Traders, on a different point, was recorded by the Gauhati High Court as having been withdrawn on 1 September 2025.
What to do with this
1. Date the order against section 73(10), 74(10) or 74A(7) before reading it. Three years from the annual-return due date for the year, not from the notice. 2. If it is late only because of a notification, identify which one. The section 73 deadline for FY 2018-19 reached 30 April 2024 through 9/2023 and 56/2023 together. Only 56/2023 has been struck down, and only by some courts. 3. Check your own State's notification. Part of Barkataki turns on Assam having issued no pari materia State notification. That is a fact to verify, not a proposition to borrow. 4. Do not run the signed-versus-uploaded point as a limitation argument. On M M Motors it fails. It remains valuable for the other clock: the date of upload is when your appeal period begins. 5. Expect a retrospective notification. Section 168A(2) permits one, and the department reserved that position in Barkataki itself. 6. Establish which High Court binds your officer before you lead on any of this. The split is the whole point.
This is the second of four notes on GST time limits. The others cover what to check when the notice lands, the appeal ladder and its two pre-deposits, and what is left when the time has gone. > This note is general information drawn from the Act, the Rules and reported > decisions, and is not advice upon any particular matter. The limits stated are > those in force on 11 October 2026. The validity of the section 168A > notifications is unsettled and the position may change. The outcome in any > case depends upon its own record.
Questions this answers
- What happens if the GST order is passed after the time limit?
- Section 75(10) provides that the adjudication proceedings shall be deemed to be concluded. It does not make the order merely irregular or voidable. If the order is late, the proceeding is over by force of the statute and the merits of the demand never arise.
- How is the time limit for a GST order calculated?
- From the due date for furnishing the annual return for the financial year concerned, not from the notice. For periods up to the financial year 2023-24 it is three years under section 73(10) and five years under section 74(10). From the financial year 2024-25 the structure changes: under section 74A(2) the notice must issue within forty-two months of the annual-return due date, and under section 74A(7) the order within twelve months of the notice, extendable by a maximum of six months by the Commissioner or an officer not below Joint Commissioner, for reasons recorded before expiry.
- Has Notification 56/2023 been struck down?
- By the Gauhati High Court, yes. In Barkataki Print and Media Services, decided 18 September 2024, the Court found that the Central Government had admitted there was no GST Council recommendation before the notification issued and had proposed to place it for ratification at the next meeting, while the notification itself recited that it was made on the recommendations of the Council. The Court held that to be a colourable exercise of power and quashed the notification as ultra vires section 168A. Other High Courts have taken a different view, and the question is not settled.
- Is an order signed on the last day but uploaded later out of time?
- Not on the Calcutta High Court's view. In M M Motors, decided 13 July 2026, an order was digitally signed on 30 April 2024, the last day of the extended period, and uploaded on 1 May 2024. The Court held that the period of limitation is confined to the issuance of the order and not to the service of it, and dismissed the petition. Note that the taxpayer's own appeal period still runs from the date of upload, so the two clocks run from different events.
More practice notes
- When a GST Notice Lands: What the Act Gives You, and What the Notice SaysA Telangana Full Bench has settled when your clock starts and what makes a notice invalid. Then two demand regimes, and the window in which paying ends the proceeding.
- The GST Appeal Ladder: Periods, Pre-deposits and the Traps in the RulesThree months and one, then three months and three. The Act gives the period; the Rules decide when your appeal counts as filed, and that is where appeals are lost.
- Too Late? Condonation, Rectification, Waiver and Compounding Under GSTPast the outer limit nobody can condone the delay, and the Limitation Act will not help. What varies is whether your High Court will give you a second chance, and on what terms.
Is the order against you out of time?
Dating the order against section 73(10), 74(10) or 74A(7) costs nothing and decides everything, because a late order ends the proceeding by force of section 75(10). We check the date, the notification relied on, and whether your State issued one at all.
Notice Assessment Session — 30 minutes, ₹5,000 + gst. A defence outline: the points to take, the documents to assemble, and the date each step falls due.