2024 (9) TMI 589 - HC - GST

Maintainability of petition - availability of statutory remedy of appeal - non-constitution of Tribunal - HELD THAT - The petitioner essentially is desirous of availing 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 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. 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. 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 - Petition disposed off.

Summary

Issues:
Non-constitution of the Tribunal affecting statutory remedy of appeal and stay of recovery under the Bihar Goods and Services Tax Act.

Analysis:
The petitioner filed a writ petition under Article 226 seeking various reliefs, primarily to avail the statutory remedy of appeal against an impugned order before the Appellate Tribunal under Section 112 of the Bihar Goods and Services Tax Act (B.G.S.T. Act). However, due to the non-constitution of the Tribunal, the petitioner was unable to exercise the statutory remedy provided under Sub-Sections (8) and (9) of Section 112 of the B.G.S.T. Act. This also prevented the petitioner from benefiting from the stay of recovery of the balance tax amount as per the provisions of Section 112 (8) and (9) of the B.G.S.T. Act upon depositing the required amounts.

The respondent State authorities acknowledged the non-constitution of the Tribunal and issued a notification to address this issue. The notification specified 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 assumes office post its constitution under Section 109 of the B.G.S.T. Act. In light of these circumstances, the High Court decided to dispose of the writ petition by providing specific directions to address the petitioner's concerns.

The Court ordered that, subject to the deposit of a specified sum equivalent to 20 percent of the remaining tax amount in dispute, the petitioner must be granted the statutory benefit of stay under Section 112 (9) of the B.G.S.T. Act. This relief was granted to ensure that the petitioner is not deprived of the benefit due to the non-constitution of the Tribunal by the respondents themselves. The Court emphasized the importance of balancing equities and stated that the relief of stay cannot be open-ended.

Furthermore, the Court directed that once the Tribunal is constituted and functional, the petitioner must file an appeal under Section 112 of the B.G.S.T. Act to facilitate the consideration of the appeal. Failure to file the 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 sum is paid as directed, any bank account attachment related to the tax demand shall be released, and the amount already deposited would be considered in determining the 20 percent payment required.

In conclusion, with the provided liberty, observations, and directions, the High Court disposed of the writ petition, ensuring that the petitioner is not unduly prejudiced by the non-constitution of the Tribunal while safeguarding the interests of both parties involved in the matter.