GST assessment demand challenged in writ petition filed due to non-constitution of the Appellate Tribunal. Court granted stay of recovery on deposit of 20% of remaining tax plus prior Section 107 deposit, with appeal to be filed under Section 112 once the Tribunal becomes functional.
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IN THE HIGH COURT OF JUDICATURE AT PATNA Civil Writ Jurisdiction Case No.1281 of 2023
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M/S Bihar Fertilizer Agency a Proprietorship Firm having its place of business situated at House of Parvati Devi, Gurhatta Chowk, Mirjan Hat, P.S. Gurhatta Chowk, Town and District Bhagalpur through its Proprietor Pradeep Kumar Gupta, (Male), aged about 62 years son of Si Brahma Prasad Lal Resident of Masakchak, Jha Colony, Jagdishpur, P.S. Adampur, Town and District Bhagalpur- 812002
... ... Petitioner/s
Versus
... ... Respondent/s
====================================================== Appearance : For the Petitioner/s : Mr. Manoj Kumar Keshri, Advocate For the Respondent/s : Mr. Vivek Prasad, GP-7 ====================================================== CORAM: HONOURABLE THE CHIEF JUSTICE and HONOURABLE MR. JUSTICE MADHURESH PRASAD ORAL ORDER
(Per: HONOURABLE MR. JUSTICE MADHURESH PRASAD)
3 03-04-2023 The instant writ petition has been filed under Article 226
of the Constitution of India seeking following reliefs:-
Patna High Court CWJC No.1281 of 2023(3) dt.03-04-2023 2/5
Bihar Goods & Service Tax Act, 2017 (hereinafter referred to as the BGST) and Central Goods & Service Tax Act, 2017 (hereinafter referred to as CGST) whereby an illegal and arbitrary order under sec 73 of BGST has been passed and demand in DRC-07 has been raised for the tax of Rs.4,39,905/Interest Rs. 43,330.64p and Penalty Rs. 43,990.50p for both CGST & SGST totaling to Rs. 10,54,452.28p without passing any order thereof regarding the said quantification of amount and further revised the demand under sec 73 of BGST vide order dated 11.02.2022 and raised the demand under vide DRC-07 for CGST & SGST of Rs. 2,60,286/-, Interest Rs. 37,340/- and Penalty Rs.26,028/- Total being Rs 3,23,794/- respectively and again revising the earlier demand vide order dated 28.02.2022 recalling the earlier order dated 11.02.2022 without giving reasonable opportunity of hearing to the Petitioner as the petitioner and his representative was suffering from COVID19, Omicron Virus during the relevant period;
The petitioner is 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
Patna High Court CWJC No.1281 of 2023(3) dt.03-04-2023 3/5
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.
Under the circumstances, 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 is, therefore, inclined to dispose of the instant writ petition in the following terms:-
(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)
Patna High Court CWJC No.1281 of 2023(3) dt.03-04-2023 4/5
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 .
(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.
(iii) In case the petitioner chooses not to avail the remedy
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of appeal by filing any appeal under Section 112 of the B.G.S.T. Act before the Tribunal within the period which may be specified upon constitution of the Tribunal, the respondentAuthorities would be at liberty to proceed further in the matter, in accordance with law.
With the above liberty, observation and directions, the writ application stands disposed of.
(K. Vinod Chandran, CJ)
( Madhuresh Prasad, J)
shashank/-
U
2 issues framed by the court
Whether the petitioner may be granted statutory stay benefits under Section 112(8)-(9) BGST despite the non-constitution of the GST Tribunal.
What conditions should apply to filing the appeal once the Tribunal is constituted.
Colour shows how this judgement treated each authority
SAJ Food Products Pvt. Ltd. vs. The State of Bihar & OthersRelied on¶30
C.W.J.C. No. 15465 of 2022
6 provisions across 2 enactments
M/S Bihar Fertilizer Agency through its Proprietor Pradeep Kumar Gupta
The State of Bihar through the Commissioner, Department of State Taxes, Government of Bihar, Patna
The Commissioner, Department of State Taxes, Government of Bihar, Patna
The Additional Commissioner of State Taxes (Appeal), Bhagalpur Division, Bhagalpur
The Assistant Commissioner of State Taxes, Bhagalpur Circle, Bhagalpur
K. Vinod Chandran
Madhuresh Prasad
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
