2023 (3) TMI 992 - HC - GST

Tax Order Challenged: Conditional Stay Granted with Deposit Requirement for Future Appellate Tribunal Appeal

HC disposed of writ petition challenging ex parte tax order under Bihar GST Act. Court granted petitioner liberty to deposit specific sum for stay of ... Maintainability of appeal - petitioner is desirous of availing statutory remedy of appeal against the impugned order before the Appellate Tribunal (Tribunal) under Section 112 of the Bihar Goods and Services Tax Act - non-constitution of the Tribunal - levy of ax, penalty and interest, under Section 74 of the Bihar Act 2017 for the tax period April 2020 to April 2021. 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 - 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. This Court in the case of ANGEL ENGICON PRIVATE LIMITED VERSUS STATE OF BIHAR, ASSISTANT COMMISSIONER OF STATE TAX [2023 (3) TMI 879 - PATNA HIGH COURT] has disposed of the writ petition with certain observations and directions, allowing certain liberty to the petitioner, where it was held that 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 instant writ petition is disposed of in the same terms, allowing the petitioner liberty as has been granted to the petitioner in above mentioned case. Issues:1. Challenge to ex parte appellate order dated 14.01.2023 under Bihar Goods And Services Tax Act 2017.2. Challenge to ex parte order dated 13.01.2021 imposing tax, penalty, and interest.3. Restraint on recovery of tax, interest, and penalty.4. Non-constitution of the Appellate Tribunal affecting statutory remedies.5. Stay of recovery of balance tax amount.6. Observations and directions in similar cases.Analysis:1. The petitioner sought a writ of certiorari to quash an ex parte appellate order dated 14.01.2023 issued by respondent no. 2, rejecting the petitioner's appeal against the order dated 13.01.2021 under Section 74 of the Bihar Goods And Services Tax Act 2017 (Bihar Act 2017). The petitioner also challenged the ex parte order dated 13.01.2021 imposing tax, penalty, and interest for the tax period April 2020 to April 2021. The petitioner further requested a restraint on the recovery of the imposed amounts. 2. Due to the non-constitution of the Appellate Tribunal, the petitioner was unable to avail of the statutory remedy under Section 112 of the Bihar Goods and Services Tax Act. The petitioner was also prevented from benefiting from the stay of recovery of the balance tax amount as per Section 112(8) and (9) of the Act upon depositing the required sums.3. The respondent State authorities acknowledged the non-constitution of the Tribunal and issued a notification to address the issue. The notification stipulated that the period of limitation for appealing before the Tribunal would commence only after the Tribunal's President assumes office post-constitution. This situation led to the disposal of a similar writ petition in the case of Angel Engicon Private Limited vs. the State of Bihar & Anr., where certain observations and directions were provided.4. In line with the Angel Engicon case, the present writ petition was disposed of with similar directions, granting the petitioner liberty to deposit a specific sum to avail the benefit of stay under Section 112(9) of the Bihar Goods and Services Tax Act. The Court emphasized the need for the petitioner to file an appeal under Section 112 once the Tribunal is constituted and functional, failing which the respondent authorities could proceed further in accordance with the law.5. The judgment underscored that the statutory relief of stay on deposit of the required amount should not be indefinite and that the petitioner must file an appeal within the specified period after the Tribunal's constitution. Failure to do so would empower the respondent authorities to take further action in the matter.6. The writ petition was disposed of, providing the petitioner with the same liberty granted in a previous case. The judgment highlighted the importance of timely appeal filing post-Tribunal constitution and reiterated the consequences of not availing the statutory remedy within the specified period.