Section 168A extensions: the challenge to extended limitation, and where the litigation stands
Almost every demand for 2017-18 to 2019-20 depends on a notification issued under Section 168A. Whether those notifications are valid is now the largest single question in GST litigation.
Section 168A permits the Government, on the recommendation of the GST Council, to extend time limits in respect of actions that cannot be completed due to force majeure. A series of notifications issued under it extended the limitation for orders under Section 73 for the financial years 2017-18, 2018-19 and 2019-20. Taxpayers have challenged those notifications on the grounds that the force majeure had ceased, that the Council recommendation was absent or came after the notification, and that limitation cannot be extended in perpetuity. High Courts have divided, and the question has travelled to the Supreme Court. Until it is resolved, the objection must be raised in every reply and appeal or it will be lost.
The provision and the notifications
Section 168A was inserted with retrospective effect in 2020 to deal with the pandemic. It permits extension of time limits specified in or prescribed under the Act, in respect of actions which cannot be completed or complied with due to force majeure, on the recommendations of the Council. Force majeure is defined to include epidemic and any other calamity caused by nature or otherwise affecting the implementation of the Act.
Notifications issued under the section extended the last date for passing an order under Section 73(10) for 2017-18, 2018-19 and 2019-20, in stages, well beyond the periods originally prescribed.
The practical effect is that demands for 2017-18 continued to be adjudicated years after the ordinary limitation would have expired, and a very large volume of the current docket exists only because of these notifications.
The grounds of challenge
First, that the force majeure had ceased. An extension notified long after the pandemic had ended, for an action that could have been completed, does not answer the statutory condition. The condition is not administrative convenience or a backlog.
Second, that the recommendation of the Council was absent, or was general, or followed rather than preceded the notification. The section conditions the power on a recommendation, and Mohit Minerals holds the recommendation is not itself the source of validity, which means the statutory sequence must be complied with strictly.
Third, that Section 168A cannot be used to extend the limitation for the taxpayer's detriment repeatedly, because limitation confers a substantive right once it has run.
Fourth, that an extension for the adjudicating authority's benefit, without a corresponding extension of the taxpayer's rights, is arbitrary.
Where the High Courts have landed
Some High Courts have upheld the notifications, holding that the existence of force majeure and the sufficiency of the recommendation are matters of executive satisfaction, that the pandemic's consequences persisted in the administrative machinery, and that the extension is a policy measure not open to close scrutiny.
Others have entertained the challenge, granted interim protection, and in some matters set aside orders passed in reliance on the later extensions.
The Supreme Court is seised of the question, and interim orders have in several matters directed that adjudications may proceed but that recovery abide the outcome. The current position must be verified before advising, because it moves.
The practical consequence for a taxpayer is asymmetric and simple. If the challenge succeeds and you did not raise it, you get nothing. If it fails and you raised it, you have lost nothing.
How to preserve the point
Plead it in the reply to the show cause notice, in terms, with the notification number and the date, and the date on which the ordinary limitation expired.
Plead it as a distinct ground in the first appeal, and again before the Tribunal. A ground not taken below is routinely refused at the appellate stage.
Where the order has been passed beyond the ordinary limitation and the extension is the only source of authority, consider a writ petition on limitation alone, which is a pure question of law and does not require the merits.
Keep the arithmetic on record: the year, the due date of the annual return, the ordinary three year period under Section 73(10), the notified extended date, and the actual date of the order. That table wins or loses the point.
Exhibit — The limitation table to put in every reply
| Year | What to record | Why it matters |
|---|---|---|
| 2017-18 | Due date of the annual return, ordinary Section 73(10) date, each extension notification relied on, date of order | The gap between the ordinary date and the order date is the entire dispute |
| 2018-19 | Same, with the specific notification for that year | Extensions were notified year by year and cannot be assumed to be uniform |
| 2019-20 | Same | The furthest extension is the most vulnerable to the cessation of force majeure argument |
| 2020-21 onwards | Ordinary limitation under Section 73 or 74 | Where no extension applies, an order beyond the date is simply time barred |
| 2024-25 onwards | Section 74A unified limitation | The regime changes; do not import the earlier arithmetic |
Verify each notification by number and date against the year in your file. Departments cite notifications that do not apply to the year under adjudication.
Authorities relied on
Council recommendations are recommendatory; validity flows from the statute and the delegation, which is why strict compliance with the sequence in Section 168A matters.
Extended limitation for judicial and quasi judicial proceedings during the pandemic; relied on by both sides in the Section 168A challenges, and confined to the periods it covers.
Illustrative of the line of High Court decisions examining whether the force majeure condition and the Council recommendation were satisfied for the later extensions.
What to do on Monday
Build the limitation table for every open year now — annual return due date, ordinary date, each notification, order date — and keep it in the front of the file.
Plead the Section 168A objection in the reply, in the first appeal and before the Tribunal; a ground omitted below is usually refused above.
Where the order rests entirely on a later extension, evaluate a writ on limitation alone rather than a merits appeal.
Record every payment as under protest and without prejudice so that a restitution claim survives if the challenge succeeds.
This page states the general position. A reader with a specific question on their own facts may write to the GST practice at AMLEGALS.
Write to the GST practiceQuestions we are asked on this
If the challenge is pending, should we pay the demand?
Weigh the pre deposit and interest cost against the probability. Where the order is otherwise weak on merits, appeal on both merits and limitation. Where it is strong on merits, limitation may be the only ground you have.
Does the extension also extend our time to claim credit or file a refund?
No. The notifications extend the department's time for specified actions. That asymmetry is itself a ground of challenge but it is not a self help remedy.
Our order was passed within the extended date but after the ordinary date. Is it valid today?
It is valid unless and until the notification is set aside. That is exactly why the ground must be preserved in the appeal memorandum now.
Does Section 74A change this?
For years from 2024-25 the unified limitation regime under Section 74A applies and the extension notifications are irrelevant. Do not carry the older arithmetic into a newer year.
Can we seek a refund if the notifications are eventually struck down?
Recovery of amounts paid under an order later found to be without authority is a restitution claim, and it will turn on whether you paid under protest and whether you kept the challenge alive.
In this cluster
- GST show cause notice: how to read it, and how to answer it
- Section 73 versus Section 74: where the department overreaches, and how to prove it
- Section 74A: the unified limitation regime from FY 2024-25
- DRC-01A pre notice intimation: reply, pay, or wait?
- From DRC-01 to DRC-07: the adjudication chain in one page
- Vague and omnibus notices: how Amrit Foods, Brindavan Beverages and Oryx Fisheries decide GST demands
- Suppression of facts under Section 74: what the department must actually prove
- Personal hearing under Section 75(4): the right, and the consequence of denying it
- Orders that travel beyond the notice: Section 75(7) in practice
- Limitation for GST demands: the year by year table you should keep in every file
GST Insights is published by AMLEGALS for general information. Law stated as on 3 September 2026. Not advice on any particular set of facts; not an advertisement or a solicitation under Rule 36 of the Bar Council of India Rules. Readers with a question on their own facts may write to the GST practice of their own accord.