When the Clock Stopped, and When It Didn't – A Reading of the Section 168A Challenges
From Barkataki Print and Media Services to Tata Play Ltd.—how four High Courts have read the Central Government's power to extend limitation under Section 168A of the CGST Act, 2017.
Table of Contents
- The Provision in Brief
- The Notifications Under Challenge
- Faizal Traders (Kerala, February 2024) – The Notifications Sustained
- Barkataki Print and Media Services (Gauhati, September 2024) – Notification 56/2023 Struck Down
- Tata Play Ltd. (Madras, June 2025) – The Fullest Exposition
- Mahabir Tiwari (Gauhati, June 2025) – Following Barkataki
- Reading the Four Judgments Together
- What This Means for Open Proceedings
- Where the Book Comes In
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1. The Provision in Brief
Section 168A was inserted into the CGST Act, 2017 by Section 6 of the Taxation and Other Laws (Relaxation and Amendment of Certain Provisions) Act, 2020, with retrospective effect from 31 March 2020. The section confers on the Central Government the power—on the recommendations of the Council, and only in cases of “force majeure”—to extend, by notification, any time limit that cannot be complied with on account of force majeure. The Explanation 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.”
In the limitation architecture of the CGST Act, Section 168A is the only escape valve. Sections 73 and 74 prescribe fixed outer limits for the issuance of show-cause notices and passing of orders—three years from the due date of the annual return for Section 73 non-fraud cases, and five years for Section 74 cases. Extending either outer limit requires Section 168A to be exercised cleanly—on a force-majeure ground, with a Council recommendation, and without trenching upon vested rights.
That is the legal frame. What has happened in practice is that a series of notifications issued during and after the COVID-19 pandemic to push out these deadlines have now come under sustained judicial scrutiny.
2. The Notifications Under Challenge
The three notifications that sit at the centre of the current litigation are:
Notification No. 13/2022-Central Tax, dated 5-7-2022 — First extended the Section 73(10) time limit for FY 2017-18 to 30 September 2023, relying on the GST Council’s 47th meeting recommendation (28–29 June 2022).
Notification No. 09/2023-Central Tax, dated 31-3-2023 — Further extended the Section 73(10) time limits for FY 2017-18 (to 31 December 2023), FY 2018-19 (to 31 March 2024) and FY 2019-20 (to 30 June 2024).
Notification No. 56/2023-Central Tax, dated 28-12-2023 — Pushed the deadlines out again – FY 2018-19 to 30 April 2024, and FY 2019-20 to 31 August 2024.
The constitutional and statutory validity of these notifications—particularly Notification No. 56/2023—is what the High Courts have now examined, with divergent results.
3. Faizal Traders (Kerala, February 2024) – The Notifications Sustained
In Faizal Traders (P.) Ltd. v. Deputy Commissioner, Central Tax and Central Excise [2024] 162 taxmann.com 493 (Kerala), the Kerala High Court declined to strike down the Section 168A notifications. The reasoning turned on three points.
First, the notifications had been issued on the recommendation of the GST Council itself. The Council, in its 47th meeting, had taken note of the pandemic’s effect on field formations and agreed with the Law Committee’s recommendation that the audit and scrutiny cycle for FY 2017-18 had been impeded by the lockdowns, and that the limitation under Section 73 should accordingly be extended.
Second, COVID-19 qualified as “force majeure” within the Explanation to Section 168A. The Central and State Governments had been operating with reduced staff and staggered timings; a conscious policy decision had been taken during the early implementation of GST not to pursue enforcement action aggressively. The factual substratum for invoking Section 168A therefore existed.
Third, the quantum of extension—how much time could reasonably be extended considering the pandemic—was a matter of executive discretion, to be exercised on the Council’s recommendation. It was not for the Court to second-guess the adequacy or excess of the period chosen.
The writ petition challenging the notifications was accordingly dismissed to that extent.
4. Barkataki Print and Media Services (Gauhati, September 2024) – Notification 56/2023 Struck Down
The first decisive break came from the Gauhati High Court in Barkataki Print and Media Services v. Union of India [2024] 166 taxmann.com 586 (Gauhati). The Court set aside a batch of orders passed under Section 73(9) by holding that Notification No. 56/2023-CT was itself ultra vires Section 168A.
The Court’s reasoning rested on the interplay of Article 279A, Article 246A and Article 254 of the Constitution, and their animating purpose of fiscal and cooperative federalism. Wherever the CGST Act or an SGST Act stipulates that an act must be done “on the recommendation of the GST Council,” the act can be done only when such a recommendation actually exists. Applying the Supreme Court’s construction of “recommend” in V.M. Kurian, the Court held that the expression, as used in Section 168A, means “the giving of a favourable report, as opposed to an unfavourable one,” by the Council. Notification No. 56/2023 had been issued without any such recommendation—it had, in fact, been issued on the recommendation of the GST Implementation Committee (GIC), which is not the Council.
The Court also observed that the force-majeure predicate for Section 168A had, by December 2023, evaporated. There was no longer any pandemic condition in existence that could justify a fresh extension.
Compounding this, the State of Assam had not issued any pari materia notification under the Assam GST Act for FY 2018-19 (on or after 1 April 2024) or for FY 2019-20 (on or after 1 July 2024). Because CGST and SGST limitations are intended to move in tandem, the absence of a matching State notification left the impugned orders standing outside the permissible Section 73(10) window under both the Central Act and the State Act.
The Court clarified that its decision would not prevent the Union or State Governments from exercising their power to issue retrospective notifications under Section 168A(2) in the manner provided under law. But the impugned orders, as they stood, were quashed.
5. Tata Play Ltd. (Madras, June 2025) – The Fullest Exposition
The Madras High Court’s decision in Tata Play Ltd. v. Union of India [2025] 176 taxmann.com 357 (Madras) is, at present, the most comprehensive judicial treatment of the Section 168A challenges. The Court struck down both Notification No. 09/2023 and Notification No. 56/2023 on a series of interlocking grounds.
One—the notifications curtail, rather than extend, limitation. Section 73 permits a show-cause notice and order to be issued within outer limits of 2 years 9 months and 3 years, respectively, from the due date of the annual return. By the time the notifications were issued, those limits had substantially run out. The Supreme Court’s suo motu order in In Re: Cognizance for Extension of Limitation had already excluded the period from 15 March 2020 to 28 February 2022 from the computation of limitation across all statutes. The Section 168A notifications, by superimposing a further extension on top of this, had in effect curtailed limitation and extinguished a vested right of action that had already accrued to the authorities under law as it stood. Section 168A confers no power to diminish limitation otherwise available.
Two—the notifications were based on an erroneous assumption of law. The Government had treated the Supreme Court’s Article 142 order as requiring or enabling the limitation extension, a reading the Madras High Court held to be a misinterpretation of the scope of that order.
Three—Notification No. 56/2023 was issued even before the Council’s recommendation. The Court found, on the record, that the recommendation relied upon was that of the GST Implementation Committee, not the Council. Reliance on the GIC was invalid, and the sequencing—notification first, Council meeting later—was fatal.
Four—arbitrariness under Article 14. The Court held that the notifications were vitiated for failure to comply with the statutory mandate of Section 168A and offended Article 14.
On these grounds, the notifications were struck down insofar as they purported to extend limitation for FYs 2017-18, 2018-19 and 2019-20.
6. Mahabir Tiwari (Gauhati, June 2025) – Following Barkataki
In Mahabir Tiwari v. Union of India [2025] 175 taxmann.com 176 (Gauhati), the Gauhati High Court reaffirmed its earlier view, holding Notification No. 56/2023-CT to be ultra vires as having been issued without the recommendation of the GST Council. The judgment expressly follows the ratio in Barkataki and consolidates the Gauhati High Court’s position on the point.
7. Reading the Four Judgments Together
Four themes emerge from the decisions.
The “recommendation” requirement is a sine qua non, not a formality. Section 168A can be exercised only on the recommendation of the GST Council. The GST Implementation Committee is an internal coordination body; its views cannot stand in for a Council recommendation. Both Barkataki and Tata Play are categorical on this point.
Force majeure must actually subsist. The pandemic that justified the 2020–2022 tranche of extensions had, by the end of 2023, ceased to be a live force-majeure event. A Section 168A notification issued in December 2023 on a COVID premise therefore fails the statutory condition itself.
Section 168A extends limitation; it does not diminish it. This is the core constitutional reasoning in Tata Play. Once a vested right of action has accrued to the tax authorities (or a vested right of repose to the taxpayer), a subsequent notification that curtails that right cannot be sustained under Section 168A, which is a one-way enabling provision.
The CGST–SGST symmetry matters. Barkataki draws out the federal dimension – a Central notification unmatched by a pari materia State notification cannot, on its own, sustain a demand under both the Central and State Acts. Taxpayers contesting demands under Section 73 should therefore examine not only the Central notifications but also the State notifications in force for the relevant period.
The position now stands divided—Faizal Traders sustaining the early-cycle extensions, and Barkataki, Tata Play and Mahabir Tiwari striking down the later ones. SLPs are pending before the Supreme Court, and a final resolution of the issue awaits.
8. What This Means for Open Proceedings
For a taxpayer facing a Section 73 demand for FY 2017-18, 2018-19 or 2019-20 where the order has been passed beyond the outer limit of Section 73(10) as originally enacted, the four judgments open three distinct lines of challenge:
- A challenge to the vires of the notification relied upon to extend limitation—particularly Notification No. 56/2023.
- A challenge grounded in the absence of a pari materia State notification where the demand is composite (CGST + SGST).
- A challenge to the force-majeure predicate of any post-2023 extension.
Because the Supreme Court is seized of the matter, assessees in jurisdictions that have followed the Faizal Traders line should consider preserving their rights through timely filing, even as the larger controversy plays out. Authorities, on their part, will be expected to issue any fresh Section 168A notifications only on a demonstrable force-majeure ground and with a contemporaneous Council recommendation on the record.
9. Where the Book Comes In
The case law on Section 168A is live, it is scattered across multiple High Courts, and—as Tata Play illustrates—the judicial reasoning is building layer upon layer. A practitioner arguing on either side of the question needs the statutory text of Section 168A, the notifications under challenge, the Supreme Court’s Cognizance for Extension of Limitation order, and the running digest of High Court decisions, read as one piece.
This is precisely the problem GST Law & Practice—A Compendium of CGST/IGST Acts along with Relevant Rules/Circulars/Notifications & Case Laws, by CA. (Dr) Arpit Haldia (8th Edition, 2026) is built to solve. Under Section 168A, the book reproduces the full annotated statutory text, the complete text of Notifications 35/2020, 13/2022, 09/2023 and 56/2023, and a substantive digest of Barkataki, Faizal Traders, Tata Play and Mahabir Tiwari—on the same page, in the three-layer format that runs through every operative provision of the CGST, IGST and UTGST Acts.
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