2023 (4) TMI 1392 - HC - GST

Maintainability of petition - availability of alternative remedy - entitlement to 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 - 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. 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 non- constitution of the Tribunal by the respondents themselves. The recovery of balance amount and any steps that may have been taken in this regard will thus be deemed to be stayed. Petiiton disposed off.

Summary

In the case before the Patna High Court, the petitioner filed a writ petition under Article 226 of the Constitution of India, seeking relief due to the non-constitution of the Appellate Tribunal under the Bihar Goods and Services Tax Act (B.G.S.T. Act). The petitioner is unable to pursue an appeal against an impugned order under Section 112 of the B.G.S.T. Act, as the Tribunal has not been constituted. Consequently, the petitioner is also unable to benefit from a stay of recovery of the balance tax amount as provided under Section 112 (8) and (9) of the Act.

The respondent State authorities acknowledged the Tribunal's non-constitution and issued a notification (Order No. 09/2019-State Tax, S.O. 399, dated 11.12.2019) under Section 172 of the B.G.S.T. Act, stating that the limitation period for filing an appeal would commence only after the Tribunal's President assumes office.

The Court decided to dispose of the writ petition with the following directives:

1. The petitioner is entitled to a stay of recovery of the balance tax amount upon depositing 20% of the disputed tax, in addition to any amount already deposited under Section 107(6) of the B.G.S.T. Act. This stay is granted due to the Tribunal's non-constitution, as similarly provided in the case of SAJ Food Products Pvt. Ltd. vs. The State of Bihar & Others.

2. The relief of stay is not indefinite. The petitioner must file an appeal under Section 112 of the B.G.S.T. Act once the Tribunal is constituted and operational. The appeal must comply with statutory requirements for consideration.

3. If the petitioner does not file an appeal within the specified period after the Tribunal's constitution, the respondent authorities may proceed according to the law.

The writ petition was thus disposed of with these observations and directions.