2023 (3) TMI 1390 - HC - GST

Maintainability of petition - availability of alternative remedy under Sub-Section (8) and Sub-Section (9) of Section 112 of the B.G.S.T. Act - - non-constitution of the Tribunal - petitioner prevented from availing the benefit of stay of recovery of balance amount of tax in terms of Section 112 (8) and (9) of the B.G.S.T Act upon deposit of the amounts as contemplated under Sub-section (8) of Section 112. HELD THAT - The respondent State authorities have acknowledged the fact of non-constitution of the Tribunal and come out with a notification bearing Order No. 09/2019-State Tax S. O. 399 dated 11.12.2019 for removal of difficulties in exercise of powers under Section 172 of the B.G.S.T Act which provides that period of limitation for the purpose of preferring an appeal before the Tribunal under Section 112 shall start only after the date on which the President or the State President as the case may be of the Tribunal after its constitution under Section 109 of the B.G.S.T Act enters office. Considering the facts and circumstances noted above this Court in the case of ANGEL ENGICON PRIVATE LIMITED VERSUS STATE OF BIHAR ASSISTANT COMMISSIONER OF STATE TAX 2023 (3) TMI 879 - PATNA HIGH COURT held that The statutory relief of stay on deposit of the statutory amount in the opinion of this Court cannot be open ended. For balancing the equities therefore the Court is of the opinion that since order is being passed due to non-constitution of the Tribunal by the respondent-Authorities the petitioner would be required to present/file his appeal under Section 112 of the B.G.S.T. Act once the Tribunal is constituted and made functional and the President or the State President may enter office. There is an additional fact in the instant case as asserted by the petitioner that in terms of the liberty granted under earlier order dated 16.11.2022 in these proceedings he has already deposited 20 percent of the remaining amount of tax in dispute. The petition is disposed off.

Summary

Issues involved:
The issues involved in the judgment are related to seeking reliefs through a writ petition under Article 226 of the Constitution of India, quashing of orders passed under the Central Goods and Services Tax Act, 2017 and Bihar Goods and Services Tax Act 2017, restraining coercive actions for recovery of tax amounts, and interpretation of provisions regarding the exclusion of damage discount from the value of supply under the tax acts.

Relief sought and statutory remedy:
The petitioner sought various reliefs through the writ petition, including quashing of orders, restraining coercive actions for tax recovery, and interpretation of provisions related to damage discount exclusion under the tax acts. The petitioner desired to avail the statutory remedy of appeal against the impugned order before the Appellate Tribunal under Section 112 of the Bihar Goods and Services Tax Act (B.G.S.T. Act). However, due to the non-constitution of the Tribunal, the petitioner was deprived of this statutory remedy and the benefit of stay of recovery of tax amounts.

Non-constitution of the Tribunal and statutory benefits:
The petitioner was prevented from availing the benefit of stay of recovery of tax amounts due to the non-constitution of the Tribunal, as acknowledged by the respondent State authorities. The Court noted the difficulties arising from the non-constitution of the Tribunal and provided certain observations and directions in a related case, allowing the petitioner to make a deposit to avail the statutory benefit of stay under the B.G.S.T. Act. The Court emphasized the need for the petitioner to file an appeal once the Tribunal is constituted to facilitate consideration of the appeal.

Disposition of the writ petition:
The Court disposed of the writ petition based on the facts and circumstances, subject to the verification of the deposit made by the petitioner. The petitioner was granted the statutory benefit of stay under the B.G.S.T. Act, with the recovery of the balance amount deemed to be stayed. The Court highlighted the requirement for the petitioner to file an appeal under Section 112 of the B.G.S.T. Act once the Tribunal is constituted, failing which the respondent authorities would be at liberty to proceed further in the matter in accordance with the law. The writ application was disposed of with certain observations, directions, and liberty granted to the petitioner.