2023 (8) TMI 1090 - HC - GST

Availing statutory remedy of appeal - Section 112 of the Bihar Goods and Services Tax Act - stay on recovery - HELD THAT - Due to non-constitution of the Tribunal, the petitioner is deprived of its 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 - Petition disposed off.

Summary

Issues:
The judgment addresses the issue of non-constitution of the Tribunal under Section 112 of the Bihar Goods and Services Tax Act, preventing the petitioner from availing statutory remedies and benefits such as appeal and stay of recovery.

Details of Judgment:

1. The petitioner filed a writ petition under Article 226 of the Constitution of India seeking to approach the Tribunal for separate assessments made by the Assessing Officer for three periods: 2018-19, 2019-20, and 1st March, 2019 to 31st March, 2019.

2. The petitioner aims to avail the statutory remedy of appeal against the impugned orders before the Appellate Tribunal under Section 112 of the Bihar Goods and Services Tax Act.

3. Due to the non-constitution of the Tribunal, the petitioner is deprived of its statutory remedy under Sub-Section (8) and Sub-Section (9) of Section 112 of the Act.

4. Consequently, the petitioner is unable to benefit from the stay of recovery of the balance tax amount as per Section 112 (8) and (9) of the Act upon depositing the required amounts.

5. The respondent State authorities acknowledged the non-constitution of the Tribunal and issued a notification for removal of difficulties, stating that the period of limitation for appealing before the Tribunal shall start only after the Tribunal is constituted.

6. The Court orders that the petitioner, upon depositing 20 percent of the remaining tax amount in dispute, must be granted the statutory benefit of stay under Section 112 (9) of the Act. The petitioner is required to file an appeal once the Tribunal is constituted for consideration.

7. The relief of stay is not open-ended, and the petitioner must file the appeal within the specified period after the Tribunal's constitution. Failure to do so allows the respondent authorities to proceed further in accordance with the law.

8. If the petitioner complies with the order and pays the required amount, any bank account attachment due to the tax demand shall be released.

9. For the stay of recovery, 20% of the further demands for each assessment period must be satisfied.

10. The writ petition is disposed of with the mentioned directions and observations, providing the petitioner with the necessary relief and obligations regarding the appeal process and stay of recovery.