2023 (3) TMI 871 - HC - GST

Recovery of demand of GST - Right to file the appeal before GST Tribunal when constituted - Demand to deposit outstanding amount against the State Goods and Services Tax (SGST) - It is the petitioner's case that the show-cause notice was not served upon the petitioner, rather it obtained a copy of the said show-cause notice subsequently on 18.12.2018 - violation of principles of natural justice - HELD THAT - Section 112 of the BGST Act provides for an appeal before the Goods and Services Tax Appellate Tribunal, which, admittedly, has not been constituted. Petitioner, thus, has a grievance that had the Tribunal been functioning it would have availed the remedy by preferring an appeal against the order of the Appellate Authority upon payment of the amount as contemplated under sub-Section (8) of Section 112 of the Act. By deeming fiction, the recovery proceedings for balance amount would have been stayed by virtue of sub-Section (9) of Section 112 of the BGST Act. It is apparent thus that the petitioner's statutory right to prefer appeal under Section 112 of the BGST Act still survives and is not barred by limitation. The petitioner is not only willing to prefer an appeal, but claims to have deposited the requisite amount for preferring Appeal before the Appellate Tribunal, as also for stay of recovery proceedings as per Section 112(9) of the BGST Act. On account of the absence of the Tribunal, petitioner has not been able to do so. The situation arising out of non-existence of the Tribunal has been acknowledged by the State of Bihar by exercising its power under Section 172 of the Act - thus, it would be unjust for the State respondents to proceed for recovery of the balance amount, when they have not constituted the Appellate Tribunal. This Court would find that the petitioner has been able to make out a strong prima facie case. On account of non constitution of the forum of Appellate Tribunal, by the authorities, the petitioner cannot be deprived of the statutory remedy under Section 112 (8) and (9) of the BGST Act. The Court, therefore, is of the opinion that interest of justice and balance of convenience also lies in favour of grant of interim relief to the petitioner - the impugned notice stands stayed.

Summary

Issues involved:
Challenge to notice for outstanding SGST amount, appeal process under BGST Act, non-constitution of GST Appellate Tribunal, stay of recovery proceedings, statutory remedy for appeal, acknowledgment of difficulty by State of Bihar, interim relief.

Analysis:
The case involves a writ application seeking the quashing of a notice demanding the deposit of an outstanding SGST amount. The petitioner, a company registered under BGST Rules, received notices regarding credit carry forward and a show-cause notice for a tax demand. The petitioner alleged that the demand was confirmed without a hearing, leading to an appeal where the demand was revised. However, the GST Appellate Tribunal, as required under Section 112 of the BGST Act, has not been constituted, depriving the petitioner of the appeal remedy.

The petitioner complied with the appeal deposit requirements but could not file an appeal due to the non-existence of the Appellate Tribunal. The State of Bihar acknowledged this issue and issued a notification for the calculation of the appeal period post-tribunal constitution. The Court noted that the petitioner's right to appeal under Section 112 of the BGST Act is not time-barred, and the absence of the Tribunal has hindered the appeal process.

Considering the strong prima facie case made by the petitioner and the unjust nature of proceeding with recovery without the Tribunal in place, the Court granted interim relief by staying the impugned notice. The Court emphasized the importance of the petitioner's statutory remedy under Sections 112(8) and (9) of the BGST Act and the acknowledgment of the tribunal issue by the State of Bihar under Section 172 of the Act.

In conclusion, the Court found it unjust to proceed with recovery when the Appellate Tribunal was not constituted, ensuring the petitioner's statutory right to appeal is not hindered. The interim relief was granted, and the case was listed for further proceedings, with a requirement for a counter affidavit from the State of Bihar.