2025 (2) TMI 660 - HC - GST

Petitioner must deposit 10% of disputed tax for recovery stay under Section 112(9) of B.G.S.T. Act.

The HC ruled that the petitioner must deposit 10% of the disputed tax amount to obtain a stay of recovery under Section 112(9) of the B.G.S.T. Act. Due to ... Maintainability of petition - availability of statutory remedy of appeal - non-constitution of the Tribunal - HELD THAT:- An amendment has been made to Section-112 of the Central Goods and Services Tax Act, 2017 substituting “twenty per cent” pre deposit to “ten per cent” for maintaining an appeal before the Goods and Services Tax Tribunal. The Tribunal has not yet been constituted and this Court had been granting orders based on the judgment in SAJ Food Products Pvt. Ltd. vs. The State of Bihar & Others [2023 (3) TMI 1390 - PATNA HIGH COURT], allowing the assessee to deposit twenty per cent of the disputed amount of tax, till the Tribunal is constituted and an appeal is filed also allowing stay of recovery. As of now pre-deposit has been reduced to “ten per cent” and the same is made effective from 01.11.2024. It is an admitted position that the GST Tribunals have not been constituted as yet. In such circumstance we direct that the assessee on payment of “ten per cent” of the tax amounts in dispute shall be entitled to stay of recovery till the Tribunal is constituted and an appeal is filed within such time as provided therein. Subject to deposit of a sum equal to 10 percent of the 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. Petition disposed off. 1. ISSUES PRESENTED and CONSIDERED:- Whether the petitioner is entitled to avail the statutory remedy of appeal against the impugned order before the Appellate Tribunal under Section 112 of the Bihar Goods and Services Tax Act.- Whether the non-constitution of the Tribunal deprives the petitioner of the statutory remedy under Sub-Section (8) and Sub-Section (9) of Section 112 of the B.G.S.T. Act.- Whether the petitioner can avail the benefit of stay of recovery of the balance amount of tax in terms of Section 112(8) and (9) of the B.G.S.T. Act upon deposit of the required amounts.- Whether the recent amendment to Section 112 of the Central Goods and Services Tax Act, 2017 affects the pre-deposit requirements for maintaining an appeal before the Goods and Services Tax Tribunal.2. ISSUE-WISE DETAILED ANALYSIS:- The Court acknowledged the petitioner's desire to appeal against the impugned order before the Appellate Tribunal under Section 112 of the B.G.S.T. Act.- Due to the non-constitution of the Tribunal, the petitioner was unable to avail the statutory remedy under Sub-Section (8) and Sub-Section (9) of Section 112 of the B.G.S.T. Act.- The Court noted that the recent amendment to Section 112 of the Central Goods and Services Tax Act, 2017 reduced the pre-deposit requirement to 'ten per cent' for maintaining an appeal before the Goods and Services Tax Tribunal.- The Court directed that the petitioner, upon payment of 'ten per cent' of the tax amounts in dispute, shall be entitled to stay of recovery until the Tribunal is constituted and an appeal is filed within the specified time.- The Court emphasized the importance of filing an appeal under Section 112 of the B.G.S.T. Act once the Tribunal is constituted and operational, failing which the respondent authorities would be at liberty to proceed further in the matter.3. SIGNIFICANT HOLDINGS:- The Court held that the petitioner must deposit a sum equal to 10 percent of the amount of tax in dispute to be entitled to the statutory benefit of stay under Sub-Section (9) of Section 112 of the B.G.S.T. Act.- The Court established that the petitioner's failure to file an appeal under Section 112 of the B.G.S.T. Act before the Tribunal within the specified period would allow the respondent authorities to proceed further in accordance with the law.- The Court concluded that compliance with the order and payment of the required amount would result in the release of any attachment of the petitioner's bank account pursuant to the demand.Overall, the judgment addressed the petitioner's right to appeal, the impact of the non-constitution of the Tribunal, the pre-deposit requirements, and the necessity of filing an appeal once the Tribunal is operational. The Court balanced the equities by providing specific directions to ensure the proper resolution of the matter in compliance with the statutory framework.