2024 (1) TMI 708 - HC - GST

Maintainability of petition - desirous of availing statutory remedy of appeal - non-constitution of the Tribunal - petitioner is 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 - 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 nonconstitution of the Tribunal by the respondents themselves - the writ petition is disposed off.

Summary

Issues involved: Non-constitution of Appellate Tribunal under Section 112 of the Bihar Goods and Services Tax Act leading to deprivation of statutory remedy and stay of recovery of tax amount.

The judgment addresses the issue of the non-constitution of the Tribunal, preventing the petitioner from availing the 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. The Court ruled that the petitioner must be extended the statutory benefit of stay under Sub-Section (9) of Section 112 upon deposit of a sum equal to 20 percent of the remaining tax amount in dispute. The recovery of the balance amount is deemed stayed, and any steps taken in this regard are halted. The Court emphasized that the petitioner should file an appeal once the Tribunal is constituted and functional, observing statutory requirements for consideration of the appeal. If the petitioner does not file an appeal within the specified period upon Tribunal constitution, the respondent authorities can proceed further in accordance with the law. Additionally, if the prescribed amount is paid, any bank account attachment shall be released.

The judgment provides a comprehensive solution to the issue of non-constitution of the Tribunal, ensuring that the petitioner's right to appeal and stay of recovery are protected while also outlining the necessary steps for future appeal processes.