2024 (2) TMI 1459 - HC - GST

Maintainability of petition - availability of statutory remedy of appeal - 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. The writ petition stands disposed of.

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 filing an appeal before the Tribunal.
4. Relief granted by the Court to the petitioner in light of non-constitution of the Tribunal.

Analysis:
The petitioner filed a writ petition seeking various reliefs under Article 226 of the Constitution of India. The main issue was the non-constitution of the Tribunal, which hindered the petitioner from availing the statutory remedy of appeal against the impugned order under Section 112 of the Bihar Goods and Services Tax Act (B.G.S.T. Act). This non-constitution of the Tribunal also prevented the petitioner from benefiting from the stay of recovery of the balance tax amount as provided under Sub-Sections (8) and (9) of Section 112 of the B.G.S.T. Act.

In response to the situation, the respondent State authorities issued a notification stating that the period of limitation for filing an appeal before the Tribunal would commence 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 acknowledged the petitioner's predicament and granted relief by directing the petitioner to deposit a sum equal to 20 percent of the remaining tax amount in dispute to avail the benefit of stay under Sub-Section (9) of Section 112 of the B.G.S.T. Act.

The Court emphasized that the relief granted should not be open-ended and required the petitioner to file an appeal under Section 112 of the B.G.S.T. Act once the Tribunal is constituted and functional. Failure to file the appeal within the specified period after the Tribunal's constitution would allow the respondent authorities to proceed further in the matter. Additionally, the Court ordered the release of any bank account attachment if the prescribed amount is paid and considered the previously deposited amount while calculating the 20 percent to be paid.

The judgment concluded by disposing of the writ petition with the mentioned directions, observations, and liberty for the respondent authorities to act in accordance with the law if the petitioner fails to file an appeal within the specified period post-Tribunal's constitution.