Section 168A GST Limitation Extensions: Divergent High Court Views and What Lies Ahead

1. Background: Why Section 168A Has Become the Core GST Litigation Issue

Section 168A of the Central Goods and Services Tax Act, 2017 was brought into the statute book during the COVID-19 crisis. It empowers the Government, acting on the recommendation of the GST Council and in the presence of a force majeure event, to extend statutory time limits prescribed or notified under the CGST Act.

During the pandemic and its aftermath, this provision was used to extend the time limit under Section 73(10) for issuance of adjudication orders for the early years of GST implementation — specifically for FY 2017-18, 2018-19 and 2019-20. This was done via three key notifications:

• Notification No. 13/2022-Central Tax dated 5 July 2022
• Notification No. 9/2023-Central Tax dated 31 March 2023
• Notification No. 56/2023-Central Tax dated 28 December 2023

These notifications now sit at the heart of one of the most consequential procedural disputes in GST. Four different High Courts — Gauhati, Madras, Telangana and Patna — have examined the validity of Notifications No. 9/2023 and 56/2023 and have arrived at sharply conflicting conclusions.

• The Gauhati High Court in M/s Barkataki Prin and Media Services v. Union of India [2024] 166 taxmann.com 586 (Gauhati) and later in Mahabir Tiwari v. Union of India [2025] 175 taxmann.com 176 (Gauhati), and the
• Madras High Court in Tata Play Ltd. v. Union of India [2025] 176 taxmann.com 357 (Madras)

have struck down Notification No. 56/2023 (and in the case of Madras, Notification No. 9/2023 as well) as ultra vires Section 168A.

On the other side:

• The Telangana High Court in Brunda Infra Pvt. Ltd. & Ors. v. Additional Commissioner of Central Tax, Hyderabad 2025 SCC OnLine TS 145, and
• The Patna High Court in Barhonia Engicon Pvt. Ltd. v. State of Bihar 2024 SCC OnLine Pat 8366

have effectively upheld the extensions and rejected the challenge.

The Supreme Court, through a Bench comprising Justice J.B. Pardiwala and Justice R. Mahadevan, has already admitted the controversy in HCC-SEW-MEIL-AAG JV v. Assistant Commissioner of State Tax [SLP (C) No. 4240/2025] along with several connected matters. Until a final ruling is delivered, field formations are continuing to issue show cause notices (SCNs) and pass orders relying upon the extended timelines.

The financial implications are immense. A very large volume of GST adjudication for FY 2017-18 to 2019-20 — involving demands aggregating to many thousands of crores of rupees — now effectively hinges on:

• Whether the three notifications are valid exercises of power under Section 168A, and
• How the Supreme Court reconciles the divergent High Court approaches.

An adverse ruling for the Revenue could render a significant block of adjudication time-barred, whereas an adverse ruling for the assessee side would neutralise one of the strongest procedural defences currently being raised.

This article revisits the statutory scheme of Section 168A, critically contrasts the four High Court positions, highlights the doctrinal questions now before the Supreme Court, and suggests practical strategies for both assessees and the administration in the interim period.

2. Dissecting Section 168A: Conditions and Scope

Section 168A states that the Government may, on recommendation of the GST Council, by notification, extend any time limit specified, prescribed or notified under the CGST Act:

“…in respect of actions which cannot be completed or complied with due to force majeure.”

The Explanation to Section 168A defines “force majeure” as:

“…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 this Act.”

This structure leads to two essential statutory preconditions:

1. Existence of a force majeure situation (as defined in the Explanation), and
2. Prior recommendation of the GST Council supporting the extension.

Originally, the COVID-19 pandemic was the force majeure basis invoked. Over time, however, the Government continued to rely on Section 168A well after the peak of the pandemic to enlarge limitation for issuing orders under Section 73(10).

The core legal challenges in the High Courts centred around Notification No. 56/2023 issued on 28 December 2023, by which time:

• The acute COVID-19 phase had long subsided,
• The Supreme Court’s suo motu order in In Re: Cognizance for Extension of Limitation [2022] 134 taxmann.com 307 (SC) — which had directed that the period from 15 March 2020 to 28 February 2022 be excluded in computing limitation — had already exhausted its run, and
• The impugned extension was said to flow from a GST Implementation Committee (GIC) decision, which was subsequently ratified by the GST Council rather than preceded by a formal Council recommendation.

Assessees argued that by December 2023, neither a valid force majeure condition nor a contemporaneous Council recommendation existed to support any further extension. On this basis, Notification No. 56/2023 (and by implication Notification No. 9/2023) was attacked as beyond the scope of Section 168A.

3. The Four High Court Approaches: A Comparative Overview

3.1 Gauhati High Court: Strict View on Council Recommendation and Force Majeure

In M/s Barkataki Prin and Media Services v. Union of India [2024] 166 taxmann.com 586 (Gauhati), decided on 19 September 2024, the Gauhati High Court held Notification No. 56/2023 to be ultra vires Section 168A.

The decision rests on two main foundations:

1. Defect in the Council Recommendation Requirement

   • The notification was anchored on a GIC decision, not on a prior GST Council recommendation.
   • The Court clarified that under Section 168A, the recommendation is a condition precedent — the Government cannot act first on a committee’s suggestion and then cure the defect by post-facto ratification by the Council.
   • In the absence of a valid, prior recommendation, the very jurisdiction to issue the notification was held to be missing.

2. Absence of Force Majeure at the Relevant Time

   • By late 2023, the pandemic situation had largely normalised; the Court found no continuing force majeure event directly preventing completion of adjudication.
   • The Revenue’s reference to administrative backlog or pendency was held not to fall within the genus of events listed in the Explanation (war, epidemic, natural calamities, etc.).
   • Therefore, the substantive trigger for invoking Section 168A was held to be absent.

The notification and consequential proceedings were quashed.

Subsequently, in Mahabir Tiwari v. Union of India [2025] 175 taxmann.com 176 (Gauhati), the Court reaffirmed its approach, reiterating that a valid GST Council recommendation is a sine qua non for any action under Section 168A. The Court treated this not as a mere procedural nicety but as a jurisdictional requirement.

3.2 Madras High Court: Deeper Delegated Legislation Analysis and Wider Invalidation

The Madras High Court in Tata Play Ltd. v. Union of India [2025] 176 taxmann.com 357 (Madras), decided on 12 June 2025 in a batch of writ petitions, went even further than the Gauhati High Court.

Key features of the Madras ruling include:

1. Characterisation of Section 168A as Delegated Legislation

   • The Court held that Section 168A enables the executive to override or modify statutory limitation periods, which is inherently legislative in character.
   • Notifications under this provision are therefore a form of delegated legislation, subject to the full rigour of judicial review applicable to subordinate legislation (including strict compliance with preconditions).

2. Force Majeure Must Be the Proximate Cause

   • The Court held that the force majeure event must be the proximate and direct cause for the inability to act within the original limitation.
   • General administrative delay or backlog, especially long after the core pandemic period, could not, in its view, be treated as a continuing outcome of COVID-19 justifying an extension.