2023 (5) TMI 1121 - HC - GST

Maintainability of petition - availability of statutory remedy of appeal - non-constitution of the Tribunal - recovery of GST alongwith penalty - ex-parte order - non-application of mind - HELD THAT - The petitioner 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. 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. 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. 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 case are the quashing of ex-parte orders under the Central Goods and Services Tax Act and Bihar Goods and Services Tax Act, denial of statutory remedy due to non-constitution of the Tribunal, and the benefit of input tax credit based on GSTR-2A discrepancies.

Quashing of Orders: The petitioner sought writs to quash ex-parte orders passed under the Central Goods and Services Tax Act and Bihar Goods and Services Tax Act, as well as appellate orders rejecting the petitioner's appeal without proper consideration of facts and law. The petitioner also requested to restrain the respondents from taking coercive action for recovery, emphasizing the absence of a GST tribunal in Bihar as a hindrance to statutory remedies.

Denial of Statutory Remedy: Due to the non-constitution of the Tribunal, the petitioner was deprived of the statutory remedy of appeal under Section 112 of the Bihar Goods and Services Tax Act. Acknowledging this issue, the respondent State authorities issued a notification to address the period of limitation for filing appeals before the Tribunal post its constitution, ensuring the petitioner's right to appeal once the Tribunal is functional.

Benefit of Input Tax Credit: The petitioner argued that the absence of auto-populated GSTR-2A should not deprive them of the benefit of input tax credit. The Court, considering the equities, directed the petitioner to deposit a sum equal to 20 percent of the remaining tax amount for the benefit of stay under Section 112 of the Bihar Goods and Services Tax Act. The Court also mandated the petitioner to file an appeal once the Tribunal is constituted to facilitate the consideration of the appeal.

Conclusion: The Court disposed of the writ petition by granting the petitioner the benefit of stay upon deposit, ensuring the petitioner's right to appeal once the Tribunal is functional. The petitioner was directed to file an appeal as per statutory requirements post the Tribunal's constitution, with the liberty for authorities to proceed if the petitioner chooses not to avail the appeal remedy within the specified period.