2023 (4) TMI 820 - HC - GST

Maintainability of petition - availability of statutory remedy of appeal - non-constitution of the Tribunal - deprival of statutory remedy under Sub- Section (8) and Sub-Section (9) of Section 112 of the B.G.S.T. Act - deprival of 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. HELD THAT - Considering the facts and circumstances noted above, this Court in the case of ANGEL ENGICON PRIVATE LIMITED VERSUS STATE OF BIHAR, ASSISTANT COMMISSIONER OF STATE TAX 2023 (3) TMI 879 - PATNA HIGH COURT has disposed of the writ petition with certain observations and directions holding that 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 under Section 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. There is an additional fact in the instant case, as asserted by the petitioner, that in terms of the liberty granted under earlier order dated 10.11.2022, in these proceedings, he has already deposited 20 percent of the remaining amount of tax in dispute. Subject to verification of the fact of deposit of a sum equal to 20 percent of the remaining amount of tax in dispute, or deposit of the same, 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, for he 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 - petition disposed off.

Summary

Issues involved:
The issues involved in the judgment are the quashing of orders by the appellate authority and assessing authority under the central goods and services tax act, the benefit of input tax credit, and the non-constitution of the Appellate Tribunal for availing statutory remedies.

Quashing of Orders:
The petitioner sought relief through a writ petition to quash orders issued by the appellate authority and assessing authority under the central goods and services tax act and Bihar goods and services tax act. The petitioner also requested restraining the respondents from coercive action during the pendency of the writ application. The court considered the absence of auto-populated GST R-2A and the benefit of input tax credit, emphasizing that the petitioner should not be deprived of this benefit due to supplier/seller defaults. The court granted certain observations and directions, allowing the petitioner to stay recovery by making a deposit and filing an appeal once the Tribunal is constituted.

Benefit of Input Tax Credit:
The petitioner contended that absence of auto-populated GST R-2A should not deprive them of input tax credit. The court held that the petitioner cannot be denied this benefit for defaults by the supplier/seller, as payment to them discharges the petitioner's liability. The court interpreted section 16(2)(c) of the central and Bihar acts to support the petitioner's claim for input tax credit despite supplier/seller defaults.

Non-constitution of Appellate Tribunal:
Due to the non-constitution of the Tribunal, the petitioner was unable to avail statutory remedies and stay recovery of tax amounts. The court acknowledged this issue and directed the petitioner to file an appeal under Section 112 of the Bihar Goods and Services Tax Act once the Tribunal is functional. The court granted the petitioner liberty to proceed with the appeal upon the Tribunal's constitution, ensuring the petitioner's rights are protected in the absence of the Tribunal.