2024 (5) TMI 355 - HC - GST

Maintainability of petition - non-constitution of the Tribunal - petitioner is deprived of his statutory remedy under sub-section (8) and sub-section (9) of Section 112 of the BGST Act - 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. 9/2019-State Tax, S.O. 399, dated 11-12-2019 for removal of difficulties, in exercise of powers under Section 172 of the BGST 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 BGST Act, enters office. Petition is disposed off 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 BGST Act, the petitioner must be extended the statutory benefit of stay under sub-section (9) of Section 112 of the BGST Act. The petitioner cannot be deprived of the benefit, due to non-constitution of the Tribunal by the respondents themselves.

Summary

Issues involved: Non-constitution of the Appellate Tribunal under the Bihar Goods and Services Tax Act leading to deprivation of statutory remedy for appeal and stay of recovery of tax amount.

Judgment Details:

1. The petitioner sought relief under Article 226 of the Constitution of India to avail the statutory remedy of appeal against an impugned order before the Appellate Tribunal under the BGST Act.

2. Due to the non-constitution of the Tribunal, the petitioner was unable to avail the statutory remedy under Section 112 of the BGST Act, thereby being prevented from benefiting from the stay of recovery of the tax amount.

3. The respondent State authorities acknowledged the non-constitution of the Tribunal and issued a notification to address the issue, stating that the period of limitation for filing an appeal before the Tribunal shall start only after the Tribunal is constituted.

4. The Court ordered that the petitioner must deposit a sum equal to 20% of the remaining tax amount in dispute to avail the statutory benefit of stay under Section 112 of the BGST Act, ensuring the recovery of the balance amount is stayed.

5. The Court emphasized that the relief of stay, upon deposit, cannot be open-ended, and the petitioner must file an appeal under Section 112 of the BGST Act once the Tribunal is constituted for the appeal to be considered.

6. If the petitioner chooses not to file an appeal within the specified period after the Tribunal's constitution, the respondent authorities are permitted to proceed further in accordance with the law.

7. Upon compliance with the Court's orders, including payment of the required amount, any attachment of the petitioner's bank account related to the tax demand shall be released.

8. The writ petition was disposed of with the mentioned observations, directions, and liberty granted to the parties involved.