2024 (2) TMI 1453 - HC - GST

Maintainability of petition - availability of statutory remedy under Sub-Section (8) and Sub-Section (9) of Section 112 of the B.G.S.T. Act - 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. The instant writ petition is 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. The petitioner cannot be deprived of the benefit, due to nonconstitution of the Tribunal by the respondents themselves. Petition disposed off.

Summary

Issues:
1. Non-constitution of the Tribunal preventing the petitioner from availing statutory remedy of appeal.
2. Deprivation of benefit of stay of recovery of tax due to non-constitution of the Tribunal.
3. Notification by respondent State authorities regarding limitation for preferring an appeal before the Tribunal.
4. Granting of statutory benefit of stay to the petitioner by the court.
5. Requirement for the petitioner to file an appeal once the Tribunal is constituted.
6. Consequences if the petitioner does not avail the remedy of appeal.
7. Release of bank account attachment upon compliance with the court's order.

Analysis:

The petitioner filed a writ petition under Article 226 seeking relief due to the non-constitution of the Appellate Tribunal, which deprived the petitioner of the statutory remedy of appeal under Section 112 of the Bihar Goods and Services Tax Act (B.G.S.T. Act). The petitioner was also unable to benefit from the stay of recovery of tax as per Section 112 (8) and (9) of the Act.

The respondent State authorities acknowledged the non-constitution of the Tribunal and issued a notification stating that the period for filing an appeal before the Tribunal would start only after the Tribunal's President or State President assumes office post-constitution under Section 109 of the B.G.S.T. Act.

The court, considering the circumstances, directed that the petitioner must be granted the statutory benefit of stay by depositing a sum equal to 20 percent of the remaining tax amount in dispute. 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.

Furthermore, the court ordered that the petitioner, upon complying with the deposit requirement, 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 accordance with the law.

In case of compliance with the court's order and payment of the required amount, any attachment of the petitioner's bank account related to the tax demand shall be released. The court disposed of the writ petition with these directions, observations, and liberty for the respondent authorities to act as per law if the petitioner fails to file an appeal within the specified period after the Tribunal's constitution.