Disposed

P K Traders and Supplier v. State of Bihar

Patna HC30 Oct 2023CWJC/15245/2023

Case brief

AI extract

What is this about?

The High Court granted a statutory stay on recovery of GST tax to the petitioner despite the non-constitution of the Appellate Tribunal, conditioned on depositing 20% of the disputed tax. The Court directed the petitioner to file an appeal once the Tribunal is set up, with liberty to release attached bank accounts.

What did the court decide?

Stay on recovery of tax subject to 20% deposit; petitioner must file appeal once Tribunal is constituted; release of attached bank account.

P K Traders and Supplier Vs State of Bihar — GST and Indirect Tax | Patna HC (2023)

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IN THE HIGH COURT OF JUDICATURE AT PATNA Civil Writ Jurisdiction Case No.15245 of 2023

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P K Traders and Supplier a proprietary concern having its office at 16 Ground, 16 Chainpur, Kalyanpur, East Champaran, Bihar-845412 through its proprietor Pravin Kumar Giri (Male, aged about 45 years), son of Daya Giri at present residing at RZK-2/357D, Behind Sun Sine Public School, Nihal Vihar, Nangloi, Nilothi, West Delhi-110041.

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... ... Petitioner/s

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Versus

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State of Bihar through Commissioner of State Tax, Bihar, Patna having its office at Vikas Bhawan, Patna.

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Addl. Commissioner of State Tax, Tirhut Division, Muzaffarpur.

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Asst. Commissioner of State Tax, Motihari, Tirhut, Bihar.

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... ... Respondent/s

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====================================================== Appearance : For the Petitioner/s : Mr. D.V.Pathy, Advocate For the Respondent/s : Mr.Vikash Kumar (SC-11) ====================================================== CORAM: HONOURABLE THE CHIEF JUSTICE and HONOURABLE MR. JUSTICE RAJIV ROY ORAL JUDGMENT (Per: HONOURABLE THE CHIEF JUSTICE)

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Date : 30-10-2023

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The instant writ petition has been filed under Article 226 of the Constitution of India seeking multifarious reliefs.

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The petitioner essentially 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").

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However, due to non-constitution of the

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Patna High Court CWJC No.15245 of 2023 dt.30-10-2023 2/4

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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.

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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.

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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.

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This Court is, therefore, inclined to dispose of the instant writ petition in the following terms:-

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(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

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Patna High Court CWJC No.15245 of 2023 dt.30-10-2023 3/4

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(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. 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 .

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(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 nonconstitution of the Tribunal by the respondentAuthorities, 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.

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(iii) In case the petitioner chooses not to avail the remedy 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 respondent- Authorities would be at liberty to proceed further in the matter, in accordance with law.

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(iv) If the above order is complied with and a sum equivalent to 20 per cent of the remaining amount of the tax in dispute is paid then, if there

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Patna High Court CWJC No.15245 of 2023 dt.30-10-2023 4/4

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is any attachment of the bank account of the petitioner pursuant to the demand, the same shall be released.

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