2023 (12) TMI 1394 - HC - GST

Maintainability of petition - availability of statutory remedy of appeal - 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

1. ISSUES PRESENTED and CONSIDERED

The judgment primarily revolves around the following core legal questions:

• Whether the petitioner is entitled to the statutory remedy of appeal under Section 112 of the Bihar Goods and Services Tax Act (B.G.S.T. Act) despite the non-constitution of the Tribunal?
• Whether the petitioner can be granted a stay on the recovery of the disputed tax amount under Section 112(9) of the B.G.S.T. Act in the absence of the Tribunal?
• What are the implications of the non-constitution of the Tribunal on the petitioner's right to appeal and seek a stay?

2. ISSUE-WISE DETAILED ANALYSIS

Issue 1: Entitlement to Statutory Remedy of Appeal

• Relevant Legal Framework and Precedents: The B.G.S.T. Act provides the statutory framework for appeals under Section 112. However, the Tribunal's non-constitution has impeded the petitioner's ability to appeal.
• Court's Interpretation and Reasoning: The court recognized the petitioner's right to appeal under Section 112, which is currently obstructed due to the Tribunal's non-constitution.
• Key Evidence and Findings: The state authorities acknowledged the Tribunal's non-constitution and issued a notification to address the limitation period for appeals.
• Application of Law to Facts: The court applied the provisions of the B.G.S.T. Act, emphasizing the petitioner's right to appeal, which cannot be nullified by the Tribunal's non-existence.
• Treatment of Competing Arguments: The court noted the state's notification as an acknowledgment of the issue and a temporary solution to the limitation period problem.
• Conclusions: The petitioner retains the right to appeal once the Tribunal is constituted, and the limitation period will commence from the date the Tribunal becomes functional.

Issue 2: Grant of Stay on Recovery of Disputed Tax

• Relevant Legal Framework and Precedents: Section 112(9) of the B.G.S.T. Act allows for a stay on the recovery of the disputed tax amount upon depositing a specified percentage of the tax.
• Court's Interpretation and Reasoning: The court determined that the petitioner should not be deprived of the stay benefit due to the Tribunal's non-constitution, provided the petitioner deposits 20% of the disputed tax amount.
• Key Evidence and Findings: The court referenced a similar case where relief was granted under comparable circumstances.
• Application of Law to Facts: The court applied the statutory provisions to grant a stay on the recovery of the balance tax amount, contingent upon the deposit of 20% of the disputed amount.
• Treatment of Competing Arguments: The court balanced the equities by ensuring the petitioner fulfills the statutory deposit requirement while awaiting the Tribunal's constitution.
• Conclusions: The petitioner is granted a stay on the recovery of the disputed tax amount, subject to the deposit of 20% of the amount, until the Tribunal is constituted.

3. SIGNIFICANT HOLDINGS

• Preserve Verbatim Quotes of Crucial Legal Reasoning: "The petitioner cannot be deprived of the benefit, due to non-constitution of the Tribunal by the respondents themselves."
• Core Principles Established: The court established that statutory rights and remedies cannot be negated due to administrative delays, such as the non-constitution of a Tribunal.
• Final Determinations on Each Issue:
  
  • The petitioner retains the right to appeal under Section 112 of the B.G.S.T. Act, with the limitation period commencing upon the Tribunal's constitution.
  • The petitioner is entitled to a stay on the recovery of the disputed tax amount, subject to depositing 20% of the amount, until the Tribunal is constituted.
  • If the petitioner does not file an appeal within the specified period after the Tribunal's constitution, the state authorities are at liberty to proceed in accordance with the law.
  
  

The judgment concludes by disposing of the writ petition with specific directions and observations, ensuring the petitioner's rights are preserved while balancing the interests of the state authorities.