9911796707
|
Home
Forgot password New User/ Regiser ⇒ Register to get Live Demo
2024 (4) TMI 767 - HC - GSTMaintainability of Writ Petition since GST Appellate Tribunal not constituted - Period of limitation - Order Appealable u/s 112 of the CGST/OGST Act, 2017 - Statutory benefit of stay - Non-constitution of the Appellate Tribunal as required u/s 109 - 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 u/s 172 of the B.G.S.T Act, which provides that period of limitation for the purpose of preferring an appeal before the Tribunal u/s 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 u/s 109 of the B.G.S.T Act, enters office. This Court is, therefore, inclined to dispose of the instant writ petition in the following terms - (i) 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. It is not in dispute that similar relief has been granted by this Court in the case of SAJ Food Products Pvt. Ltd. vs. The State of Bihar Others 2023 (3) TMI 1390 - PATNA HIGH COURT (ii) The statutory relief of stay, on deposit of the statutory amount, however in the opinion of this Court, cannot be open ended. For balancing the equities, therefore, the Court is of the opinion that since order is being passed due to non - constitution of the Tribunal by the respondent- Authorities, the petitioner would be required to present/file his appeal u/s 112 of the B.G.S.T. Act, once the Tribunal is constituted and made functional and the President or the State President may enter office. The appeal would be required to be filed observing the statutory requirements after coming into existence of the Tribunal, for facilitating consideration of the appeal. (iii) In case the petitioner chooses not to avail the remedy of appeal by filing any appeal u/s 112 of the B.G.S.T. Act before the Tribunal within the period which may be specified upon constitution of the Tribunal, the respondent - Authorities would be at liberty to proceed further in the matter, in accordance with law. (iv) If the above order is complied with and a sum equivalent to 20 per cent of the remaining amount of the tax in dispute is paid then, if there is any attachment of the bank account of the petitioner pursuant to the demand, the same shall be released. (v) Whatever has been deposited, would be given account in determining the 20 per cent directed to be paid herein. With the above liberty, observation and directions, the writ petition stands disposed of.
Issues involved: Non-constitution of the Tribunal affecting statutory remedy of appeal and stay of recovery under Section 112 of the Bihar Goods and Services Tax Act.
Summary: The writ petition was filed seeking various reliefs under Article 226 of the Constitution of India. The petitioner aimed to avail the statutory remedy of appeal against the impugned order before the Appellate Tribunal under Section 112 of the Bihar Goods and Services Tax Act. However, due to the non-constitution of the Tribunal, the petitioner was unable to access the statutory remedy provided under Sub-Sections (8) and (9) of Section 112. Consequently, the petitioner was also unable to benefit from the stay of recovery of the balance amount of tax as per the provisions of Section 112 (8) and (9) of the Act. The respondent State authorities acknowledged the non-constitution of the Tribunal and issued a notification to address this issue. The notification stated 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 following its constitution under Section 109 of the Act. In light of the circumstances, the Court disposed of the writ petition by issuing the following directions: 1. The petitioner must deposit a sum equal to 20 percent of the remaining amount of tax in dispute, if not already deposited, to be granted the statutory benefit of stay under Sub-Section (9) of Section 112. This stay would prevent the recovery of the balance amount until the Tribunal is constituted. 2. The petitioner is required to file an appeal under Section 112 of the Act once the Tribunal is functional, and the President or State President assumes office. Failure to file the appeal within the specified period would allow the respondent authorities to proceed further in accordance with the law. 3. If the prescribed conditions are met, any attachment of the petitioner's bank account due to the tax demand shall be released. 4. The amount already deposited will be considered towards the 20 percent payment required. 5. The writ petition was disposed of with the mentioned directions, observations, and liberty granted to the parties involved.
|
