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2023 (9) TMI 1124 - HC - GSTMaintainability of petition - availability of alternative remedy - non-filing of Hard Copy and Appeal has been filed after a delay of 103 days - HELD THAT - The petitioner is desirous of availing statutory remedy of appeal against the impugned order before the Appellate Tribunal (hereinafter referred to as Tribunal ) under Section 112 of the Bihar Goods and Services Tax Act (B.G.S.T. 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 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. Petition disposed off 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.
Issues involved:
The issues involved in the judgment are: 1. Setting aside an order dismissing an appeal on the ground of non-filing of hard copy and limitation. 2. Setting aside an ex parte order imposing tax amount under CGST and SGST for non-disclosure of TDS. 3. Setting aside a demand notice and restraining the issuance of a recovery notice. 4. Availing statutory remedy of appeal due to non-constitution of the Tribunal. 5. Benefit of stay of recovery of tax amount. Issue 1: Setting aside appeal dismissal order: The petitioner sought relief for setting aside an order dismissing the appeal on the ground of non-filing of hard copy and delay of 103 days. The Court directed that the petitioner must deposit a sum equal to 20 percent of the remaining tax amount in dispute to avail the statutory benefit of stay under Section 112 of the B.G.S.T. Act. The Court emphasized that the petitioner should not be deprived of this benefit due to the non-constitution of the Tribunal by the respondents themselves. Issue 2: Setting aside ex parte order for tax imposition: The petitioner requested setting aside an ex parte order imposing tax amount under CGST and SGST for non-disclosure of TDS. The Court noted that the respondent authorities initiated proceedings based on the petitioner's alleged suppression of turnover while filing returns. The Court directed that the petitioner should file an appeal under Section 112 of the B.G.S.T. Act once the Tribunal is constituted and functional. Failure to do so would allow the respondent authorities to proceed further in the matter. Issue 3: Setting aside demand notice and restraining recovery notice: The petitioner sought setting aside a demand notice and restraining the issuance of a recovery notice. The Court did not specifically address this issue in the judgment but provided directions regarding the appeal process and stay of recovery, which indirectly impacted the demand and recovery proceedings. Issue 4: Availing statutory remedy of appeal: Due to the non-constitution of the Tribunal, the petitioner was unable to avail the statutory remedy of appeal under Section 112 of the B.G.S.T. Act. The Court acknowledged this issue and directed the petitioner to file an appeal once the Tribunal is constituted and functional. The Court highlighted that the appeal should be filed observing the statutory requirements after the Tribunal comes into existence. Issue 5: Benefit of stay of recovery of tax amount: The Court emphasized the importance of granting the petitioner the benefit of stay of recovery of the tax amount under Section 112 of the B.G.S.T. Act. The Court directed the petitioner to deposit a certain sum to avail this benefit and highlighted that the relief of stay cannot be open-ended. The petitioner was required to file an appeal once the Tribunal is constituted to facilitate the consideration of the appeal. This summary provides a detailed overview of the judgment, addressing each issue involved and the corresponding directives given by the Court.
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