2024 (8) TMI 1089 - HC - GST

Maintainability of petition - availability of statutory remedy of appeal against the impugned order before the Appellate Tribunal u/s 112 of the Bihar Goods and Services Tax Act - HELD THAT - Due to non-constitution of the Tribunal, the petitioner is deprived of his statutory remedy under Sub-Section (8) and Sub-Section (9) of Section 112 of the B.G.S.T. Act. Under the circumstances, the petitioner is also prevented from availing the 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. 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. Petition disposed off subject to fulfilment of conditions imposed.

Summary

Issues:
1. Non-constitution of the Appellate Tribunal under Section 112 of the Bihar Goods and Services Tax Act.
2. Deprivation of statutory remedy of appeal and stay of recovery of tax amount.
3. Notification by State authorities for removal of difficulties regarding the period of limitation for preferring an appeal.
4. Granting of statutory benefit of stay and conditions for availing the remedy of appeal.

Analysis:
The petitioner filed a writ petition seeking various reliefs under Article 226 of the Constitution of India due to the non-constitution of the Appellate Tribunal under Section 112 of the Bihar Goods and Services Tax Act (B.G.S.T. Act). The petitioner desired to avail the statutory remedy of appeal against an impugned order before the Tribunal but was unable to do so because of the non-constitution of the Tribunal. This lack of constitution deprived the petitioner of the statutory remedies under Sub-Section (8) and Sub-Section (9) of Section 112 of the B.G.S.T. Act, including the benefit of stay of recovery of tax amount. The respondent State authorities acknowledged this issue and issued a notification to address the difficulties faced, stating that the period of limitation for filing an appeal before the Tribunal would start only after the Tribunal's constitution.

The Court disposed of the writ petition by granting certain reliefs to the petitioner. Firstly, the petitioner was granted the statutory benefit of stay under Sub-Section (9) of Section 112 of the B.G.S.T. Act, subject to depositing a sum equal to 20 percent of the remaining tax amount in dispute. This stay was deemed necessary as the Tribunal was not constituted by the respondents themselves. The Court emphasized that the relief of stay could not be open-ended and required the petitioner to file an appeal under Section 112 once the Tribunal became functional. Failure to file the appeal within the specified period would allow the respondent authorities to proceed further in accordance with the law. Additionally, if the conditions were met, any attachment of the petitioner's bank account would be released. The judgment provided clarity on the process to be followed in light of the non-constitution of the Tribunal, ensuring that the petitioner could avail the statutory remedies once the Tribunal was established.