2024 (10) TMI 1103 - HC - GST

Petition filed under Article 226 of the Constitution of India seeking multifarious reliefs - maintainability of petition - availing statutory remedy of appeal - non-constitution of the Tribunal - stay of recovery of tax - 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:
Non-constitution of the Tribunal preventing the petitioner from availing statutory remedy of appeal and stay of recovery of tax.

Analysis:
The petitioner filed a writ petition seeking relief under Article 226 of the Constitution of India due to the non-constitution of the Tribunal, which deprived the petitioner of the statutory remedy of appeal under Section 112 of the Bihar Goods and Services Tax Act (B.G.S.T. Act). The petitioner was also unable to avail the benefit of stay of recovery of the balance amount of tax as per the provisions of Section 112 (8) and (9) of the B.G.S.T. Act.

The respondent State authorities acknowledged the non-constitution of the Tribunal and issued a notification to address the issue. The notification stated 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.

In its judgment, the Court directed that the petitioner must deposit a sum equal to 20 percent of the remaining tax amount in dispute to avail the statutory benefit of stay under Section 112 (9) of the B.G.S.T. Act. The Court emphasized that the petitioner should not be deprived of this benefit due to the non-constitution of the Tribunal by the respondents. The Court also highlighted a similar relief granted in a previous case.

Furthermore, the Court stated that the relief of stay, upon deposit of the statutory amount, cannot be indefinite. The petitioner was required to file an appeal under Section 112 of the B.G.S.T. Act once the Tribunal is constituted and functional. Failure to file the appeal within the specified period upon the Tribunal's constitution would allow the respondent authorities to proceed further in accordance with the law.

The Court disposed of the writ petition with the mentioned directions, observations, and liberty for the respondent authorities to take further action if the petitioner fails to file an appeal within the specified period upon the Tribunal's constitution.