2023 (11) TMI 1010 - HC - GST

Maintainability of petition - availing statutory remedy of appeal - 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. Petition 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. The petitioner cannot be deprived of the benefit, due to non- constitution of the Tribunal by the respondents themselves, and other conditions imposed.

Summary

Issues involved: Non-constitution of the Tribunal preventing statutory remedy of appeal and stay of recovery of tax under the Bihar Goods and Services Tax Act.

Judgment Details:

1. The petitioner sought relief for availing 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. Due to the non-constitution of the Tribunal, the petitioner was deprived of the statutory remedy under Sub-Section (8) and Sub-Section (9) of Section 112 of the B.G.S.T. Act, which also prevented the petitioner from availing the benefit of stay of recovery of the balance amount of tax.

3. 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 preferring an appeal before the Tribunal shall start only after the Tribunal is constituted under Section 109 of the B.G.S.T. Act.

4. The Court ordered that upon depositing a sum equal to 20 percent of the remaining amount of tax in dispute, the petitioner must be granted the statutory benefit of stay under Sub-Section (9) of Section 112 of the B.G.S.T. Act, as the petitioner cannot be deprived of this benefit due to the non-constitution of the Tribunal.

5. The Court further directed that the petitioner must file an appeal under Section 112 of the B.G.S.T. Act once the Tribunal is constituted and functional, observing the statutory requirements for facilitating consideration of the appeal.

6. If the petitioner chooses not to avail the remedy of appeal within the specified period upon the constitution of the Tribunal, the respondent authorities are at liberty to proceed further in the matter in accordance with the law.

7. Compliance with the court's order, including payment of the required sum, would result in the release of any bank account attachment pursuant to the demand.

8. The writ petition was disposed of with the mentioned directions, observations, and liberty granted to the parties involved.