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2023 (8) TMI 645 - HC - GSTMaintainability of petition - availability of alternative remedy of appeal u/s 112 of the Bihar Goods and Services Tax Act - non-constitution of Tribunal - 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. The petition is disposed off 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.
Issues involved:
1. Non-constitution of the Tribunal preventing the petitioner from availing statutory remedy under Section 112 of the B.G.S.T. Act. 2. Deprivation of benefit of stay of recovery of tax amount due to non-constitution of the Tribunal. 3. Notification issued by the respondent State authorities regarding the period of limitation for preferring an appeal before the Tribunal. Issue 1: Non-constitution of the Tribunal preventing the petitioner from availing statutory remedy under Section 112 of the B.G.S.T. Act: The petitioner sought relief under Article 226 of the Constitution of India to appeal against an impugned order before the Appellate Tribunal under Section 112 of the Bihar Goods and Services Tax Act. However, the non-constitution of the Tribunal hindered the petitioner from exercising the statutory remedy provided under sub-sections (8) and (9) of Section 112 of the B.G.S.T. Act. Issue 2: Deprivation of benefit of stay of recovery of tax amount due to non-constitution of the Tribunal: The petitioner was also denied the benefit of stay of recovery of the remaining tax amount as per Section 112 (8) and (9) of the B.G.S.T Act because of the absence of the Tribunal. The Court acknowledged that the petitioner should not be deprived of this benefit due to the non-constitution of the Tribunal by the respondents themselves. Therefore, the recovery of the balance amount was deemed to be stayed upon the deposit of a specified sum. Issue 3: Notification issued by the respondent State authorities regarding the period of limitation for preferring an appeal before the Tribunal: The respondent State authorities issued a notification to address the issue of non-constitution of the Tribunal. The notification clarified 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 enters office post its constitution under Section 109 of the B.G.S.T Act. Conclusion: The Court directed that the petitioner, upon depositing a specified sum, should be granted the statutory benefit of stay under Section 112 (9) of the B.G.S.T. Act. It was emphasized that the relief of stay should not be open-ended, and the petitioner must file an appeal once the Tribunal is constituted and functional. Failure to do so would allow the respondent authorities to proceed further in accordance with the law. The writ petition was disposed of with these directions and observations.
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