2023 (7) TMI 874 - HC - GST

Maintainability of petition - availability of alternative remedy of appeal - non-constitution of the Tribunal - time limitation - HELD THAT - The petitioner essentially is desirous of availing statutory remedy of appeal against the impugned order before the Appellate Tribunal (Tribunal) under Section 112 of the Bihar Goods and Services Tax Act - However, due to non-constitution of the Tribunal, the petitioner is deprived of his statutory remedy under Sub-Section (8) and Sub-Section (9) of Section 112 of the B.G.S.T. Act. The petitioner is also 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 - 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. The writ petition stands disposed of.

Summary

Issues involved: Non-constitution of the Tribunal affecting statutory remedy of appeal and stay of recovery under the Bihar Goods and Services Tax Act.

Judgment Summary:

The writ petition was filed seeking various reliefs, primarily to avail the statutory remedy of appeal against an impugned order before the Appellate Tribunal under the Bihar Goods and Services Tax Act. However, due to the non-constitution of the Tribunal, the petitioner was unable to access the statutory remedy and the benefit of stay of recovery of tax amounts. The respondent State authorities acknowledged this issue and issued a notification to address the difficulties arising from the non-constitution of the Tribunal.

The High Court, in its judgment, directed the petitioner to deposit a sum equal to 20 percent of the remaining tax amount in dispute to avail the statutory benefit of stay under the Act. The Court emphasized that the petitioner should not be deprived of this benefit due to the non-constitution of the Tribunal by the authorities themselves. The Court also noted that similar relief had been granted in a previous case.

Furthermore, the Court stated that the relief of stay, upon deposit of the statutory amount, cannot be open-ended. The petitioner was required to file an appeal under Section 112 of the Act once the Tribunal is constituted and functional. Failure to file the appeal within the specified period would allow the authorities to proceed further in accordance with the law.

Lastly, if the petitioner complied with the Court's order and paid the required amount, any attachment of the petitioner's bank account related to the tax demand would be released. The writ petition was disposed of with the mentioned directions and observations, providing the petitioner with necessary guidance on how to proceed regarding the appeal and stay of recovery.