2024 (1) TMI 1348 - HC - GST

Maintainability of petition - availability of statutory remedy of appeal against the impugned order before the Appellate Tribunal - 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. This Court is, therefore, inclined to dispose of the instant writ petition subject to fulfilment of conditions imposed - Subject to deposit of a sum equal to 20 per cent 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:
1. Non-constitution of the Tribunal depriving the petitioner of statutory remedy of appeal.
2. Preventing the petitioner from availing the benefit of stay of recovery of tax.
3. Acknowledgment by respondent State authorities of non-constitution of the Tribunal.
4. Relief granted by the Court in terms of stay and appeal filing requirements.

Detailed Analysis:
1. The petitioner filed a writ petition under Article 226 seeking relief for the unavailability of the statutory remedy of appeal against an impugned order due to the non-constitution of the Tribunal under Section 112 of the Bihar Goods and Services Tax Act (B.G.S.T. Act). The petitioner was deprived of the remedy under Sub-Sections (8) and (9) of Section 112 of the Act, leading to the inability to appeal against the order.

2. The petitioner was also prevented from benefiting from the stay of recovery of the balance amount of tax as per Section 112 (8) and (9) of the B.G.S.T. Act because of the non-constitution of the Tribunal. The Court noted that the petitioner had already deposited a certain amount under Sub-Section (6) of Section 107 of the Act.

3. The respondent State authorities acknowledged the issue of non-constitution of the Tribunal and issued a notification to address this concern. The notification provided that the period of limitation for filing an appeal before the Tribunal under Section 112 would commence only after the President or State President of the Tribunal enters office post its constitution under Section 109 of the B.G.S.T. Act.

4. The Court disposed of the writ petition by granting specific reliefs to the petitioner. Firstly, subject to the deposit of a specified amount, the petitioner was granted the benefit of stay under Section 112 (9) 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. Additionally, the Court outlined the requirement for the petitioner to file an appeal under Section 112 once the Tribunal is constituted and functional, specifying that failure to do so would allow the respondent Authorities to proceed further in the matter. Finally, if the specified amount was paid, any bank account attachment related to the tax demand would be released.

In conclusion, the Court's judgment addressed the issues arising from the non-constitution of the Tribunal, ensuring that the petitioner was not unfairly deprived of statutory remedies and providing a framework for future actions once the Tribunal is established.