2023 (5) TMI 924 - HC - GST

Maintainability of petition - availability of alternative remedy of appeal - non-constitution of the Tribunal - 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. Subject to deposit of a sum equal to 20 percent of the remaining amount of tax in dispute, if not already deposited, in addition to the amount deposited earlier under Sub-Section (6) of Section 107 of the B.G.S.T. Act, the petitioner must be extended the statutory benefit of stay under Sub-Section (9) of Section 112 of the B.G.S.T. Act. The petitioner cannot be deprived of the benefit, due to non- constitution of the Tribunal by the respondents themselves. The recovery of balance amount, and any steps that may have been taken in this regard will thus be deemed to be stayed. Petition disposed off.

Summary

Issues involved: Non-constitution of the Tribunal affecting statutory remedy of appeal under Section 112 of the Bihar Goods and Services Tax Act (B.G.S.T. Act).

Summary:

The writ petition was filed under Article 226 of the Constitution of India seeking various reliefs, primarily the appeal against an impugned order before the Appellate Tribunal under Section 112 of the B.G.S.T. Act. However, due to the non-constitution of the Tribunal, the petitioner was deprived of the statutory remedy under Sub-Sections (8) and (9) of Section 112 of the B.G.S.T. Act, which also prevented the petitioner from availing the benefit of stay of recovery of the balance amount of tax. The respondent State authorities acknowledged this issue and issued a notification for removal of difficulties, stating that the period of limitation for appealing before the Tribunal shall start after the Tribunal's constitution.

The Court decided to dispose of the writ petition by providing the following terms:
(i) The petitioner must be granted the benefit of stay under Sub-Section (9) of Section 112 upon depositing a sum equal to 20 percent of the remaining tax amount in dispute, in addition to any earlier deposits made. This stay benefit cannot be denied due to the non-constitution of the Tribunal.
(ii) The stay relief, however, cannot be open-ended. The petitioner will be required to file an appeal under Section 112 once the Tribunal is constituted and functional. The appeal must adhere to statutory requirements for consideration.
(iii) If the petitioner chooses not to file an appeal within the specified period after the Tribunal's constitution, the respondent authorities can proceed further in accordance with the law.

The writ petition was disposed of with these directions and observations, granting the petitioner relief in light of the non-constitution of the Tribunal.