Petitioner Cannot Be Deprived Of The Benefit, Due To Non- Constitution Of The Appellate Tribunal By The Respondents Themselves: Patna High Court

The division bench comprising Chief Justice K. Vinod Chandran and Justice Rajiv Roy allowed a writ petition filed under Article 226 of the Constitution of India, seeking various reliefs.

The petitioner essentially was desirous of availing statutory remedy of appeal against the impugned order before the Appellate Tribunal (hereinafter referred to as "Tribunal" ) under Section 112 of the Bihar Goods and Services Tax Act (hereinafter referred to as "B.G.S.T. Act").

However, due to non-constitution of the Tribunal, the petitioner was 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 was 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 acknowledged the fact of non-constitution of the Tribunal and came 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.

The Court, noting that the petitioner cannot be deprived of the benefit due to the non-constitution of the Tribunal by the respondents, ordered,

“(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. 15465 of 2022.”

The Court further ordered, “(ii) 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. The appeal would be required to be filed observing the statutory requirements after coming into existence of the Tribunal, for facilitating consideration of the appeal.”

The Court ruled that should the petitioner decide not to pursue the option of filing an appeal under Section 112 of the B.G.S.T. Act with the Tribunal within the specified period, the respondent authorities are free to proceed with further actions in accordance with the law.

Additionally, the Court stipulated that if the petitioner complies with the aforementioned order by making a payment equivalent to 20 percent of the outstanding disputed tax amount, any bank account attachment resulting from the demand shall be lifted.

With these observations and directions, the writ petition has been disposed of by the Patna High Court.

Counsel/s For the Petitioner/s: Mr.Alok Kumar, Advocate

Counsel/ For the Respondent/s: Dr. K.N. Singh, Additional Solicitor General

LL Citation: 2023 Livelaw (Pat) 128

Case Title: M/s Cohesive Infrastructure Developers Pvt. Ltd vs The Central Board of Indirect Taxes and Customs and Ors

Case No.: Civil Writ Jurisdiction Case No.15438 of 2023

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