Case Details: Amit Kumar Basau vs. Sales Tax Officer, Avato, Delhi (2025) 35 Centax 268 (Del.)
Judiciary and Counsel Details
- Prathibha M. Singh & Shail Jain, JJ.
- S/Shri Abhishek Garg & Naman Mehta, Advs., for the Petitioner.
- S/Shri Sumit K. Batra, Ms Anoushka Bhalla, Advs. & Arun Khatri, SSC, for the Respondent.
Facts of the Case
An unregistered partnership firm though registered under GST, challenged the SCN dated 27.11.2024 and the ex parte assessment order dated 20.02.2025 for FY 2020-21, which raised total demand of ₹1,09,02,348/-. No reply to the SCN was filed due to the Chartered Accountant’s oversight. The petition also assailed two GST notifications already under challenge in Sarens Heavy Lift India Pvt. Ltd. The Respondent objected to the writ petition on the ground that the firm was unregistered under the Partnership Act and hence barred by Section 69. The partner, was impleaded as Petitioner No. 1. The petitioner relied on Supreme Court rulings that Section 69 does not apply where statutory rights are being enforced.
High Court Held
The Delhi High Court has held that an unregistered partnership firm can file a writ petition through its partner to enforce statutory rights under GST. The exception to Section 69(2) of the Partnership Act is carved out in the decision of the Supreme Court in Haldiram Bhujiawala & Anr. v. Anand Kumar Deepak Kumar & Anr. [(2000) 3 SCC 250]. It was held that Section 69(2) cannot bar the enforcement by way of a suit by an unregistered firm in respect of a statutory right or a common law right.In the present case, the writ petition sought reliefs under the CGST Act, under which the Petitioner no. 2 had a registration, despite being an unregistered Partnership firm. Such a firm, which is paying taxes and has any grievances against the Department, cannot be non-suited from enforcing statutory rights. Moreover, since the Partner was also impleaded, it cannot be held that the writ petition was not maintainable.
List of Cases Cited
- Haldiram Bhujiawala v. Anand Kumar Deepak Kumar — (2000) 3 SCC 250 — Referred [Paras 8, 12]
- Sarens Heavy Lift India Pvt. Ltd. v. Sales Tax Officer — W.P.(C) No. 9060 of 2025 by Delhi High Court — Referred [Paras 5, 10, 14]
- Shiv Developers v. Aksharay Developers — 2022 SCC OnLine SC 114 — Referred [Para 12]
List of Notifications Cited
- Notification No. 40/2021-C.T., dated 29-12-2021[Para 4]
- Notification No. 40/2021-S.T., dated 9-6-2022 [Para 4]
