2023 (9) TMI 274 - HC - GST

Maintainability of petition - statutory remedy under Sub-Section (8) and Sub-Section (9) of Section 112 of the B.G.S.T. Act not available - non-constitution of the 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. 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 petition seeks relief under Article 226 of the Constitution of India due to non-constitution of the Tribunal, preventing the petitioner from availing statutory remedy under Section 112 of the Bihar Goods and Services Tax Act (B.G.S.T. Act).

Judgment Details:

Issue 1: Non-constitution of Tribunal and denial of statutory remedy
The petitioner filed a writ petition seeking relief against the impugned order, desiring to appeal before the Appellate Tribunal under Section 112 of the B.G.S.T. Act. However, due to the non-constitution of the Tribunal, the petitioner is deprived of the statutory remedy under Sub-Section (8) and Sub-Section (9) of Section 112. The respondent State authorities acknowledged this fact and issued a notification for removal of difficulties, stating that the period of limitation for preferring an appeal before the Tribunal shall start only after the Tribunal is constituted. The Court ordered that the petitioner must deposit a sum equal to 20 percent of the remaining tax amount to avail the statutory benefit of stay under Section 112. The recovery of the balance amount will be stayed, and the petitioner will be required to file an appeal once the Tribunal is constituted and functional.

Issue 2: Statutory relief of stay and appeal filing requirements
The Court held that the statutory relief of stay, upon deposit of the required amount, cannot be open-ended. The petitioner must file an appeal under Section 112 of the B.G.S.T. Act once the Tribunal is constituted and the President or State President enters office. Failure to file the appeal within the specified period upon Tribunal constitution will allow the respondent authorities to proceed further in the matter. If the order is complied with and the required payment made, any bank account attachment pursuant to the demand shall be released.

Conclusion:
The Court disposed of the writ petition with the above directions, granting relief to the petitioner subject to the specified conditions and requirements for availing the statutory benefit of stay and filing an appeal once the Tribunal is constituted.