2023 (10) TMI 638 - HC - GST

Maintainability of petition - availability of statutory remedy of appeal - non-constitution of the Tribunal - HELD THAT - 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. 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 - petition disposed off.

Summary

Issues involved:
The petition seeks relief under Article 226 of the Constitution of India due to non-constitution of the Tribunal preventing the petitioner from availing statutory remedy under the Bihar Goods and Services Tax Act.

Judgment Details:

1. The petitioner desires to appeal against an impugned order before the Appellate Tribunal under the Bihar Goods and Services Tax Act, but is unable to do so due to the non-constitution of the Tribunal, depriving the petitioner of the statutory remedy.

2. The respondent State authorities have acknowledged the non-constitution of the Tribunal 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.

3. The Court orders that the petitioner, upon depositing a sum equal to 20 percent of the remaining tax amount in dispute, must be granted the benefit of stay under the Act. This is to balance the equities due to the non-constitution of the Tribunal by the authorities.

4. The statutory relief of stay is not open-ended, and the petitioner is required to file an appeal under the Act once the Tribunal is constituted and functional. Failure to do so may result in the authorities proceeding further in accordance with the law.

5. If the petitioner complies with the order and pays the required amount, any bank account attachment due to the tax demand shall be released.

6. The writ petition is disposed of with the above directions and observations, providing the petitioner with the necessary relief and guidance on future actions regarding the appeal process before the Tribunal.