2024 (2) TMI 993 - HC - GST

Tax Recovery Halted: Petitioner Must Deposit 20% and File Appeal After Tribunal Constitution with Procedural Safeguards

M/s Billion Polycraft Pvt. Ltd. Versus Union of India and Others

HC of Patna addressed a writ petition challenging tax recovery due to non-constitution of Appellate Tribunal. The court directed petitioner to deposit 20% ... Maintainability of petition - availability of Alternative remedy of appeal - non-constitution of the Tribunal - HELD THAT:- 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. 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 - Petition disposed off. Issues Involved:1. Non-constitution of the Tribunal preventing the petitioner from availing statutory remedy of appeal.2. Deprivation of benefit of stay of recovery of tax due to non-constitution of the Tribunal.Summary:The High Court of Patna addressed a writ petition filed under Article 226 of the Constitution of India seeking various reliefs. The petitioner sought to avail the statutory remedy of appeal against an impugned order before the Appellate Tribunal under Section 112 of the Bihar Goods and Services Tax Act (B.G.S.T. Act). However, the non-constitution of the Tribunal hindered the petitioner from exercising the statutory remedy under Sub-Section (8) and Sub-Section (9) of Section 112 of the B.G.S.T. Act, thereby preventing the petitioner from benefiting from the stay of recovery of the balance amount of tax as well.The respondent State authorities acknowledged the non-constitution of the Tribunal and issued a notification to address the issue. The Court, therefore, disposed of the writ petition by providing the following directions:(i) The petitioner must deposit a sum equal to 20 percent of the remaining amount of tax in dispute to avail the statutory benefit of stay under Sub-Section (9) of Section 112 of the B.G.S.T. Act. The recovery of the balance amount will be deemed stayed, as the petitioner cannot be deprived of this benefit due to the non-constitution of the Tribunal by the respondents.(ii) The Court emphasized that the relief of stay, upon deposit of the statutory amount, cannot be indefinite. The petitioner is required to file an appeal under Section 112 of the B.G.S.T. Act once the Tribunal is constituted and functional, observing statutory requirements for facilitating consideration of the appeal.(iii) If the petitioner chooses not to file an appeal within the specified period upon the constitution of the Tribunal, the respondent authorities are at liberty to proceed further in accordance with the law.(iv) Compliance with the order, including payment of the required amount, will result in the release of any bank account attachment related to the tax demand.With these directions, observations, and liberty granted, the writ petition was disposed of by the High Court of Patna.