2023 (4) TMI 820 - HC - GST

Taxpayers entitled to statutory stay benefits under Section 112(9) despite non-functional appellate tribunal

Gammon Engineers and Contractors Pvt. Ltd. Versus The State of Bihar The Additional Commissioner of State Taxes (Appeals) Central Division, Patna. The Assistant Commissioner of State Taxes, Patliputra Circle, Patna.

The Patna HC disposed of a writ petition concerning the maintainability of a challenge to a tax order where the statutory appellate tribunal was not ... Maintainability of petition - availability of statutory remedy of appeal - non-constitution of the Tribunal - deprival of statutory remedy under Sub- Section (8) and Sub-Section (9) of Section 112 of the B.G.S.T. Act - deprival of 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. HELD THAT:- Considering the facts and circumstances noted above, 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 holding 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 appeal would be required to be filed observing the statutory requirements after coming into existence of the Tribunal, for facilitating consideration of the appeal. There is an additional fact in the instant case, as asserted by the petitioner, that in terms of the liberty granted under earlier order dated 10.11.2022, in these proceedings, he has already deposited 20 percent of the remaining amount of tax in dispute. Subject to verification of the fact of deposit of a sum equal to 20 percent of the remaining amount of tax in dispute, or deposit of the same, 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, for he 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 - petition disposed off. ISSUES PRESENTED AND CONSIDERED 1. Whether a taxpayer is entitled to the statutory benefit of stay under Section 112(9) of the B.G.S.T. Act when the statutory Appellate Tribunal under Section 109 is not constituted, thereby depriving the taxpayer of the statutory right of appeal under Section 112? 2. If such entitlement arises, what conditions (including monetary deposit) and temporal limitations should be imposed to balance equities between the taxpayer and the revenue while protecting the taxpayer from prejudice caused by non-constitution of the Tribunal? 3. What procedural consequence should follow if the taxpayer, having been granted interim protection conditioned on deposit, does not file the statutory appeal within the period specified after constitution of the Tribunal? ISSUE-WISE DETAILED ANALYSIS Issue 1 - Entitlement to stay under Section 112(9) due to non-constitution of the Tribunal Legal framework: Section 112(8)-(9) of the B.G.S.T. Act provides for filing of appeal to the Tribunal and for grant of stay of recovery upon deposit of specified amount; Section 109 contemplates constitution of the Tribunal; Section 172 empowers the State to remove difficulties. Article 226 constitutional writ jurisdiction permits relief where statutory remedies are rendered illusory. Precedent treatment: The Court relied upon its earlier order in Angel Engicon (same High Court) which addressed identical factual and legal difficulty and granted conditional relief. That earlier order was followed in the present matter. Interpretation and reasoning: The Court recognized that non-constitution of the Tribunal is attributable to the respondent-authorities and results in denial of the statutory appellate remedy and attendant stay mechanism. Equity and fairness require that a taxpayer not be deprived of the statutory benefit merely because the State has not constituted the appellate forum. Consequently, the Court held that, subject to conditions (see Issue 2), the taxpayer is entitled to the statutory benefit of stay under Section 112(9) despite the Tribunal not being in existence. Ratio vs. Obiter: Ratio - where the statutory appellate mechanism is unavailable due to non-constitution of the Tribunal by the State, a taxpayer may be granted the statutory stay-benefit under Section 112(9) on specified conditions. Obiter - any broader comments about the State's power under Section 172 were incidental. Conclusions: The Court extended the statutory benefit of stay under Section 112(9) to the petitioner because the inability to file an appeal was caused by non-constitution of the Tribunal by the State. Issue 2 - Conditions for grant of stay: deposit and verification; temporal limitation Legal framework: Section 112(8) prescribes deposit conditions for stay of recovery; the Court must balance competing equities when statutory forum is non-functional. Authorization under writ jurisdiction permits conditional directions to mimic statutory safeguards. Precedent treatment: The same deposit condition (20% of the remaining disputed tax in addition to amounts already deposited under Section 107(6)) was imposed in the prior Angel Engicon order and was adopted here. Interpretation and reasoning: To maintain the balance between the taxpayer's right and revenue protection, the Court required the taxpayer to deposit a sum equal to 20% of the remaining disputed tax (in addition to amounts earlier deposited under Section 107(6)). The Court conditioned the grant of stay on verification of such deposit. The rationale is twofold: (a) the deposit approximates the statutory economic sacrifice contemplated in the Act for obtaining stay; and (b) the condition safeguards the revenue while preventing prejudice to the taxpayer caused by the State's delay in constituting the Tribunal. Ratio vs. Obiter: Ratio - interim stay akin to Section 112(9) will be granted on depositing 20% of remaining disputed tax (plus earlier deposits), with verification. Obiter - the specific percentage is a judicially fashioned equitable measure in the circumstances of non-constitution and may not bind other courts in differing circumstances. Conclusions: The Court ordered that the petitioner be extended stay under Section 112(9) subject to (i) deposit (or verification of deposit) of 20% of the remaining disputed tax in addition to prior deposits, and (ii) that such deposit be verified before the stay is treated as effective. Issue 3 - Temporal limitation and obligation to file appeal when Tribunal is constituted; consequence of non-filing Legal framework: The statutory scheme contemplates filing of appeal to the Tribunal once constituted; writ jurisdiction can grant interim relief but cannot supplant the statutory appeal mechanism indefinitely. Precedent treatment: The Court adhered to the approach in Angel Engicon which imposed a temporal limitation and an obligation to file appeal once the Tribunal becomes functional. Interpretation and reasoning: The Court held that the interim relief is not open-ended. Since the stay is granted only because the State failed to constitute the Tribunal, it is equitable to require the taxpayer to file the statutory appeal when the Tribunal is constituted and the President or State President enters office. This requirement ensures that the provisional judicial accommodation does not permanently displace the legislated appellate process. The Court further directed that if the taxpayer does not present/file the appeal within the period to be specified upon constitution, the respondent authorities are at liberty to proceed in accordance with law, thereby ending the interim protection. Ratio vs. Obiter: Ratio - interim stay conditional on filing the statutory appeal within the period specified after constitution of the Tribunal; non-filing permits revenue to resume steps for recovery. Obiter - procedural specifics of the time period to be specified were left to occur upon constitution and may vary. Conclusions: The stay is limited in duration: the taxpayer must file the appeal after the Tribunal is constituted within any period that the Tribunal or the authorities may specify; failing such filing, the revenue may proceed further in accordance with law. Cross-references and Ancillary Points 1. The Court explicitly followed and applied its earlier order (Angel Engicon) providing identical relief and conditions; that order is the direct precedent relied upon and constitutes the controlling approach in the present matter (see Issue 1 and Issue 2). 2. The Court confined its directions to relief that remedies denial of statutory appellate process caused by non-constitution; other substantive claims pleaded (for example, on input tax credit and statutory interpretation of Section 16(2)(c) or merits of assessment under Section 73) were not decided on merits but remained subject to the statutory appeal process once constituted. 3. Verification of deposit is a precondition to treat the recovery as stayed; all enforcement steps taken after grant of stay are deemed stayed only upon such verification and compliance with deposit conditions (cross-ref Issues 1-2).