2023 (6) TMI 988 - HC - GST

Maintainability of petition - availability of statutory remedy of appeal against the impugned order - non-constitution of the Tribunal - also prevented from availing the benefit of stay of recovery of balance amount 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 statutory relief of stay on deposit of the statutory amount however in the opinion of this Court cannot be open ended. For balancing the equities therefore the Court is of the opinion that since order is being passed due to non - constitution of the Tribunal by the respondent-Authorities the petitioner would be required to present/file his appeal under Section 112 of the B.G.S.T. Act once the Tribunal is constituted and made functional and the President or the State President may enter office. Petition disposed off.

Summary

Issues involved: Non-constitution of the Tribunal depriving petitioner of statutory remedy under B.G.S.T. Act, benefit of stay of recovery of tax, acknowledgment by respondent State authorities, disposal of writ petition.

Details of the judgment:

The writ petition was filed by the petitioner seeking various reliefs under Article 226 of the Constitution of India. The petitioner wanted to avail the statutory remedy of appeal against the impugned order before the Appellate Tribunal under Section 112 of the Bihar Goods and Services Tax Act (B.G.S.T. Act). However, due to the non-constitution of the Tribunal, the petitioner was deprived of this statutory remedy under sub-section (8) and sub-section (9) of Section 112 of the B.G.S.T. Act.

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.

The Court decided to dispose of the writ petition by granting certain reliefs to the petitioner. Firstly, the petitioner was granted the benefit of stay of recovery of the balance amount of tax upon depositing a sum equal to 20 percent of the remaining amount of tax in dispute. This benefit was extended under sub-section (9) of Section 112 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 themselves.

Secondly, the Court mentioned that the relief of stay, upon deposit of the statutory amount, cannot be open-ended. 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. The appeal needed to be filed observing the statutory requirements after the Tribunal comes into existence.

Lastly, if the petitioner chose not to avail the remedy of appeal by filing an appeal before the Tribunal within the specified period upon its constitution, the respondent authorities were given the liberty to proceed further in the matter in accordance with the law.

With the above directions and observations, the writ petition was disposed of by the Court.