9911796707
TMI Blog2023 (12) TMI 557X X X X Extracts X X X X X X X X Extracts X X X X ..... peal which is vested in the petitioner by the statute is being denied on account of the failure of the appropriate Government to constitute the tribunal. Hence this writ petition. The executive inertia cannot become the cause of denial of a statutory right. In this context it would be apposite to recall the observations made by the Supreme Court in Supdt. of Taxes v. Onkarmal Nathmal Trust reported at (1976) 1 SCC 766: "17. The first contention on behalf of the State that it became impossible for the State to issue notice under Section 7(2) of the new Act within two years of the expiry of the period of return is unsound on principle and facts. The maxim lex non cogit ad impossibilia means that the law does not compel a man to do that which he cannot possibly perform. In the present appeals, the applications were moved in the High Court for stay of proceedings. The respondents challenged the validity of the Act, and, therefore, asked for an injunction restraining the State from taking proceedings under the Act. At no stage, did the State ask for variation or modification of the order of injunction. It is well known that if it is brought to the notice of a court that proceedings a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ct, 2017. Under the statute, a Second Appeal lies before the Appellate Tribunal. However, the same has not been constituted so far, therefore the petitioner has approached this Court by way of the instant petition. Learned counsel for the petitioner points out that while filing First Appeal, the petitioner had deposited 10% of the disputed tax liability as provided under sub-section (6) of Section 107 of the Act. He submitted that an appeal before the Tribunal would be competent only if 20% of the remaining amount of tax in dispute is deposited in addition to the amount deposited before the First Appellate Authority. He submitted that the petitioner is ready and willing to deposit 20% of the remaining amount of tax in dispute. Accordingly, the petitioner is permitted to deposit 20% of the remaining amount of tax in dispute and as soon as the said amount is deposited, the recovery proceedings for the balance amount shall remain stayed as provided under sub-section (9) of Section 112 of the Act. The Revenue, which is already represented, may file counter affidavit within three weeks. List in the third week of January, 2020." In M/S Tulsi Steels vs. State Of U.P. And 2 Othe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Any amount already deposited by the petitioner be adjusted against the deposit to be made under this order." Clearly, in the facts of these cases, there appears to be inconsistency in the interim orders granted by this Court. The Uttar Pradesh Goods and Services Tax Act as well as the Central Goods and Services Tax Act contemplate pre-deposit of certain amounts i.e. 10% of the of the disputed tax liability before the first appellate authority. In addition to that, 20% of the disputed tax liability is liable to be deposited before the second appellate authority at the time of institution of the appeal. The relevant provision is liable to be extracted hereunder: "Section 112. Appeals to Appellate Tribunal ....... (8) No appeal shall be filed under sub-section (1), unless the appellant has paid-- (a) in full, such part of the amount of tax, interest, fine, fee and penalty arising from the impugned order, as is admitted by him; and (b) a sum equal to twenty per cent. of the remaining amount of tax in dispute, in addition to the amount paid under sub-section (6) of section 107, arising from the said order, [subject to a maximum of fifty crore rupees,] in relation to which ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... paid then, if there is any attachment of the bank account of the petitioner pursuant to the demand, the same shall be released." Further, the Patna High Court in PCPL and RK - JV a Joint Venture vs. The State of Bihar and others (Civil Writ Jurisdiction Case No. 3733 of 2023) also issued the following directions while deciding the applications: "This Court is, therefore, inclined to dispose of the instant writ petition in the following terms:- (i) 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. It is not in dispute that similar relief has been granted by this Court in the case of SAJ Food Products Pvt. Ltd. vs. The State of Bihar & Others in C.W.J.C. No. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... se of passing an interim order is to evolve a workable formula or a workable arrangement to the extent called for by the demands of the situation keeping in mind the presumption regarding the constitutionality of the legislation and the vulnerability of the challenge, only in order that no irreparable injury is occasioned. The Court has therefore to strike a delicate balance after considering the pros and cons of the matter lest larger public interest is not jeopardized and institutional embarrassment is eschewed." Similarly in Vishnu Traders v. State of Haryana, 1995 Supp (1) SCC 461, it was observed: "3. In the matters of interlocutory orders, principle of binding precedents cannot be said to apply. However, the need for consistency of approach and uniformity in the exercise of judicial discretion respecting similar causes and the desirability to eliminate occasions for grievances of discriminatory treatment requires that all similar matters should receive similar treatment except where factual differences require a different treatment so that there is assurance of consistency, uniformity, predictability and certainty of judicial approach." The imperative of giving identical ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
