Disposed

Abhay Enterprises a proprietary conern v. State of Bihar

Patna HC8 Nov 2023CWJC/15796/2023

Case brief

AI extract

What is this about?

The High Court granted a temporary stay on tax recovery to a petitioner prevented from filing an appeal due to the non-constitution of the Tribunal. The Court directed the deposit of 20% of the remaining tax dispute to obtain stay and release attached accounts, conditional on filing the appeal once the Tribunal becomes functional.

What did the court decide?

Extension of statutory stay under Section 112(9) B.G.S.T. Act on depositing 20% of remaining tax in dispute; stay of recovery and release of attached bank accounts subject to conditions; direction to

Abhay Enterprises a proprietary conern 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.15796 of 2023

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Abhay Enterprises a proprietary conern having its office at Vill Paduman Chhapra, Panch- Bathna, Block - Kesaria, near Bathna Mandir, East Champaran, Bihar - 845424 through its proprietor Abhay Kumar Giri (Male, aged about 41 years) son of Ramshiv Giri at present residing at vill- Lala Chhapra, Ward No. 3, Lala Chhapra, East Champaran, Bihar - 845424.

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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. Vivek Prasad, GP 7 Ms. Roona, AC to GP 7 Ms. Manisha Singh, AC to GP 7 Mr. Sanjay Kumar, AC to GP 7 Ms. Supragya, AC to GP 7 ======================================================

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CORAM: HONOURABLE THE CHIEF JUSTICE and HONOURABLE MR. JUSTICE RAJIV ROY ORAL JUDGMENT (Per: HONOURABLE THE CHIEF JUSTICE)

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Date : 08-11-2023

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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

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Patna High Court CWJC No.15796 of 2023 dt.08-11-2023 2/4

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Tax Act (hereinafter referred to as "B.G.S.T. Act").

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However, due to non-constitution of the 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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Patna High Court CWJC No.15796 of 2023 dt.08-11-2023

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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 (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

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Patna High Court CWJC No.15796 of 2023 dt.08-11-2023

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

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With the above liberty, observation and

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directions, the writ petition stands disposed of.

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(K. Vinod Chandran, CJ)

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(Rajiv Roy, J)

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Sunil/-

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AFR/NAFR
CAV DATE
Uploading Date	09.11.2023
Transmission Date

Abhay Enterprises a proprietary conern v. State of Bihar

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Abhay Enterprises a proprietary conern v. State of Bihar

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