2024 (1) TMI 1368 - 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.
2. Benefit of stay of recovery of tax amount under Section 112 of the B.G.S.T. Act.
3. Notification by State authorities regarding the period of limitation for appeal.
4. Disposal of the writ petition with specific directions.

Analysis:

1. The petitioner sought relief under Article 226 due to the non-constitution of the Tribunal, hindering the appeal process under Section 112 of the B.G.S.T. Act. The petitioner was unable to avail the statutory remedy of appeal against the impugned order in the absence of the Tribunal, as outlined in Sub-Sections (8) and (9) of Section 112.

2. The Court directed that upon depositing 20 percent of the remaining tax amount in dispute, the petitioner should be granted the benefit of stay under Section 112(9) of the B.G.S.T. Act. This stay was crucial, and any recovery actions were deemed stayed, considering the non-constitution of the Tribunal by the respondents. The Court referred to a similar relief granted in a previous case for precedent.

3. State authorities issued a notification acknowledging the non-constitution of the Tribunal and providing clarity on the period of limitation for filing an appeal. The notification stated that the limitation period would commence only after the President or State President of the Tribunal enters office post-constitution under Section 109 of the B.G.S.T. Act.

4. The Court disposed of the writ petition with specific directions. It mandated the petitioner to file an appeal under Section 112 of the B.G.S.T. Act once the Tribunal is functional. Failure to file an appeal within the specified period upon the Tribunal's constitution would allow the respondent authorities to proceed further in accordance with the law. Additionally, if the prescribed amount was paid, any bank account attachment pursuant to the tax demand would be released. The judgment provided clear instructions on the course of action for all parties involved, ensuring compliance with statutory requirements and equitable treatment.