2024 (1) TMI 1349 - 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 under Section 112 of the B.G.S.T. Act.
2. Acknowledgment by respondent State authorities of non-constitution of the Tribunal and issuance of a notification for removal of difficulties.
3. Granting of statutory benefit of stay to the petitioner by the Court due to non-constitution of the Tribunal.
4. Requirement for the petitioner to file an appeal under Section 112 of the B.G.S.T. Act once the Tribunal is constituted.
5. Consequences if the petitioner chooses not to avail the remedy of appeal within the specified period upon constitution of the Tribunal.

Analysis:

The High Court judgment addressed the issue of non-constitution of the Tribunal, which prevented the petitioner from availing the statutory remedy under Section 112 of the B.G.S.T. Act. The respondent State authorities acknowledged this issue and issued a notification to address the difficulties arising from the non-constitution of the Tribunal. The Court, considering the circumstances, granted the petitioner the statutory benefit of stay of recovery of the balance tax amount under Section 112 (8) and (9) of the B.G.S.T. Act, subject to the deposit of a specified sum. This decision was based on the principle that the petitioner should not be deprived of the benefit due to the non-constitution of the Tribunal by the respondents themselves.

Furthermore, the Court directed the petitioner to file an appeal under Section 112 of the B.G.S.T. Act once the Tribunal is constituted and functional. The Court emphasized the importance of observing the statutory requirements for filing the appeal to facilitate its consideration. It was made clear that if the petitioner chooses not to avail the remedy of appeal within the specified period upon the constitution of the Tribunal, the respondent authorities would be at liberty to proceed further in the matter in accordance with the law.

Additionally, the Court outlined that the statutory relief of stay granted to the petitioner, upon compliance with the specified conditions, should not be open-ended. The petitioner was required to present/file the appeal within the prescribed period after the Tribunal becomes functional. The judgment also addressed the release of any bank account attachment if the specified sum equivalent to 20 percent of the remaining tax amount in dispute is paid by the petitioner. With these directions and observations, the writ petition was disposed of, providing clarity on the course of action for the petitioner and the respondent authorities in light of the non-constitution of the Tribunal.