2024 (11) TMI 446 - HC - GST

Maintainability of petition - availing statutory remedy of appeal against the impugned order - HELD THAT - Due to non-constitution of the Tribunal, the petitioner is deprived of his statutory remedy under Sub-Section (8) and Sub-Section (9) of Section 112 of the B.G.S.T. Act. Under the circumstances, 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. 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.

Summary

Issues: Petitioner seeking appeal remedy due to non-constitution of Tribunal under B.G.S.T. Act.

Analysis:
The petitioner filed a writ petition under Article 226 seeking various reliefs, primarily desiring to avail the 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). However, the non-constitution of the Tribunal deprived the petitioner of this statutory remedy as well as the benefit of stay of recovery of the tax amount. The respondent State authorities acknowledged the non-constitution of the Tribunal and issued a notification to address the issue. The High Court noted that the petitioner should not be deprived of the benefit due to the non-constitution of the Tribunal by the respondents themselves. The Court directed that upon deposit of a specified sum, the petitioner must be extended the statutory benefit of stay under Section 112 of the B.G.S.T. Act to prevent recovery of the balance tax amount. The Court referred to a similar relief granted in a previous case to support its decision.

Furthermore, the Court emphasized that the relief of stay, upon deposit of the required amount, should not be open-ended. The Court held that the petitioner would need to file an appeal under Section 112 of the B.G.S.T. Act once the Tribunal is constituted and functional, and the President or State President enters office. The appeal should be filed within the specified period after the Tribunal's establishment to facilitate consideration. If the petitioner chooses not to file an appeal within the specified period, the respondent authorities would be allowed to proceed further in accordance with the law. Additionally, if the specified conditions are met, any attachment of the petitioner's bank account pursuant to the tax demand shall be released.

In conclusion, the High Court disposed of the writ petition with the above directions, observations, and liberty granted to the parties, ensuring that the petitioner is not unfairly prejudiced by the non-constitution of the Tribunal and providing a structured approach for the petitioner to pursue the appeal remedy once the Tribunal is established.