2023 (6) TMI 182 - HC - GST

Maintainability of petition - availability of statutory remedy of appeal - non-constitution of the Tribunal - Section 112 of the Bihar Goods and Services Tax Act - Stay of demand - HELD THAT - 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 disposed off.

Summary

Issues involved:
The judgment addresses the issue of non-constitution of the Appellate Tribunal under the Bihar Goods and Services Tax Act, which deprives the petitioner of the statutory remedy of appeal and stay of recovery of tax amounts.

Details of the judgment:

1. The petitioner sought relief under Article 226 of the Constitution of India 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).

2. The petitioner was unable to access the remedy due to the non-constitution of the Tribunal, which also prevented the petitioner from obtaining a stay of recovery of the balance tax amount as per Section 112 (8) and (9) of the B.G.S.T Act.

3. The respondent State authorities acknowledged the non-constitution of the Tribunal and issued a notification to address the issue, stating that the period of limitation for filing an appeal before the Tribunal shall start only after the Tribunal is constituted.

4. The Court directed that the petitioner must deposit a sum equal to 20 percent of the remaining tax amount in dispute to avail the statutory benefit of stay under Section 112 of the B.G.S.T. Act. The recovery of the balance amount was deemed stayed until the Tribunal is constituted.

5. The Court emphasized that the relief of stay cannot be open-ended and required the petitioner to file an appeal under Section 112 once the Tribunal is functional. Failure to do so would allow the authorities to proceed further in the matter.

6. The judgment concluded by disposing of the writ petition with directions for the petitioner to avail the remedy of appeal upon the constitution of the Tribunal, while granting liberty to the authorities to act in accordance with the law if the petitioner fails to file an appeal within the specified period after the Tribunal's formation.