2024 (9) TMI 596 - HC - GST

Maintainability of petition - petition filed under Article 226 of the Constitution of India seeking multifarious reliefs - non-constitution of the Tribunal - HELD THAT - The petitioner essentially is desirous of availing statutory remedy of appeal against the impugned orders before the Appellate Tribunal u/s 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. The petitioner cannot be deprived of the benefit, due to non- constitution of the Tribunal by the respondents themselves - Petition is disposed off.

Summary

Issues:
1. Non-constitution of the Tribunal preventing the petitioner from availing statutory remedy of appeal.
2. Deprivation of benefit of stay of recovery of tax amount due to non-constitution of the Tribunal.
3. Notification by respondent State authorities regarding limitation for filing an appeal before the Tribunal.
4. Granting of statutory benefit of stay to the petitioner by the Court.
5. Requirement for the petitioner to file an appeal once the Tribunal is constituted.
6. Consequences if the petitioner does not file an appeal within the specified period.
7. Release of bank account attachment upon compliance with the Court's order.

Analysis:

The High Court judgment addressed the issue of non-constitution of the Tribunal, which was preventing the petitioner from availing the statutory remedy of appeal against impugned orders under the Bihar Goods and Services Tax Act. The petitioner was also deprived of the benefit of stay of recovery of the tax amount due to the non-constitution of the Tribunal. The respondent State authorities had issued a notification specifying that the period of limitation for filing an appeal before the Tribunal would start after the Tribunal's constitution. The Court granted the petitioner the statutory benefit of stay, subject to depositing a sum equal to 20 percent of the remaining tax amount in dispute, in addition to the amount already deposited.

Furthermore, the Court ruled that the stay granted to the petitioner was not open-ended, and the petitioner would be required to file an appeal under Section 112 of the B.G.S.T. Act once the Tribunal is constituted and functional. Failure to file an appeal within the specified period would allow the respondent authorities to proceed further in the matter. The judgment also directed the release of any bank account attachment upon compliance with the Court's order. The amount already deposited by the petitioner would be taken into account in determining the 20 percent to be paid.

In conclusion, the Court disposed of the writ petition by providing specific directions to ensure that the petitioner could avail the statutory remedy of appeal once the Tribunal is constituted, while also balancing the equities involved in the case.