TMI Blog2023 (3) TMI 871X X X X Extracts X X X X X X X X Extracts X X X X ..... nal, which, admittedly, has not been constituted. Petitioner, thus, has a grievance that had the Tribunal been functioning it would have availed the remedy by preferring an appeal against the order of the Appellate Authority upon payment of the amount as contemplated under sub-Section (8) of Section 112 of the Act. By deeming fiction, the recovery proceedings for balance amount would have been stayed by virtue of sub-Section (9) of Section 112 of the BGST Act. It is apparent thus that the petitioner's statutory right to prefer appeal under Section 112 of the BGST Act still survives and is not barred by limitation. The petitioner is not only willing to prefer an appeal, but claims to have deposited the requisite amount for preferring ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . 336 dated 25.01.2023, issued by the Deputy Commissioner of State Tax, Special Circle, Patna, asking the petitioner to deposit outstanding amount of Rs. 97,24,149/- against the State Goods and Services Tax (SGST) by 27.01.2023. The petitioner is a company incorporated under the provisions of the Companies Act, 1956, and is registered under Bihar Goods and Services Tax Rules, 2017 (BGST Rules), vide GSTIN 10AACCR2460C1Z6. As pleaded in the writ application, a notice was issued to the petitioner on 02.02.2018 by the Deputy Commissioner (In-charge Patna), Special Circle, under Rule 121 of the BGST Rules, calling upon the petitioner to furnish returns, records, books of accounts and other evidence in support of the claim for the carry forwa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Tribunal been functioning it would have availed the remedy by preferring an appeal against the order of the Appellate Authority upon payment of the amount as contemplated under sub-Section (8) of Section 112 of the Act. By deeming fiction, the recovery proceedings for balance amount would have been stayed by virtue of sub-Section (9) of Section 112 of the BGST Act. There is specific statement made in paragraph 13 of the writ petition that though the petitioner had made its intention clear to prefer an appeal before the Appellate Tribunal in terms of Section 112 of the BGST Act 2017, the department kept on insisting for recovery of the entire amount. In order to buy peace and to put quietus to the repeated demand of the department, the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the Section 107, arising from the said order, in relation to which the appeal has been filed. (9) Where the appellant has paid the amount as per Sub-Section (8), the recovery proceedings for the balance amount shall be deemed to be stayed till the disposal of the appeal. As has already been noticed, there is no Tribunal constituted in accordance with Section 109 of the BGST Act. Our attention has been drawn to an order issued by the State of Bihar under Section 172 of the BGST Act for removal of difficulties. Clause 2 of which reads as under:- 2. For the removal of difficulties, it is hereby clarified that for the purpose of calculating,- (a) the three months from the date on which the order sought to be appeal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o do so. The situation arising out of non-existence of the Tribunal has been acknowledged by the State of Bihar by exercising its power under Section 172 of the Act. In such view of the matter, we are prima facie satisfied that it would be unjust for the State respondents to proceed for recovery of the balance amount, when they have not constituted the Appellate Tribunal. From the pleadings in the writ petition, this Court would find that the petitioner has been able to make out a strong prima facie case. On account of non constitution of the forum of Appellate Tribunal, by the authorities, the petitioner cannot be deprived of the statutory remedy under Section 112 (8) and (9) of the BGST Act. The Court, therefore, is of the opinio ..... X X X X Extracts X X X X X X X X Extracts X X X X
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