2023 (9) TMI 268 - HC - GST

Maintainability of petition - statutory remedy under Sub-Section (8) and Sub-Section (9) of Section 112 of the B.G.S.T. Act not available - 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:
The issues involved in the judgment are the non-constitution of the Tribunal under the Bihar Goods and Services Tax Act, hindering the petitioner's statutory remedy of appeal and stay of recovery of tax.

Non-constitution of Tribunal:
The petitioner sought relief under Article 226 due to the non-constitution of the Tribunal, preventing the availing of statutory remedy of appeal under Section 112 of the B.G.S.T. Act. The respondent State authorities acknowledged this fact and issued a notification for removal of difficulties, stating that the period of limitation for appealing before the Tribunal shall start only after the Tribunal is constituted. The Court disposed of the petition by granting the petitioner the benefit of stay upon deposit of a sum equal to 20 percent of the remaining tax amount, emphasizing that the petitioner should not be deprived of this benefit due to the non-constitution of the Tribunal.

Statutory relief of stay:
The Court held that the statutory relief of stay, upon deposit of the required amount, cannot be open-ended. It was decided that the petitioner must file an appeal under Section 112 of the B.G.S.T. Act once the Tribunal is constituted and functional. The appeal should be filed in accordance with statutory requirements after the Tribunal comes into existence, ensuring the appeal's consideration.

Failure to file appeal:
If the petitioner chooses not to file an appeal under Section 112 of the B.G.S.T. Act within the specified period after the Tribunal's constitution, the respondent authorities are permitted to proceed further in the matter according to the law. The judgment concluded by disposing of the writ petition with the mentioned directions and observations, providing the petitioner with the necessary guidance for availing the statutory remedy of appeal.