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Rohit Kumar v. The State of Bihar

Patna HC13 Apr 2023CWJC/2446/2023

Case brief

AI extract

What is this about?

Writ petition filed by a taxpayer seeking statutory remedy and stay under the Bihar Goods and Services Tax Act due to the State's failure to constitute the Appellate Tribunal. The High Court granted a limited stay upon depositing remaining tax while directing the filing of an appeal once the Tribunal is constituted.

What did the court decide?

Stay on recovery of tax balance granted subject to deposit of 20% of remaining tax; petitioner directed to file appeal before Tribunal once constituted.

Rohit Kumar Vs The 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.2446 of 2023

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======================================================

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Rohit Kumar Son of Birendra Kumar, Gender- male, aged about 27 years,

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resident of Village and P.O. - Barsa, P.S. - Kasar, District - Sheikhpura.

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... ... Petitioner

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Versus

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The State of Bihar through the Principal Secretary-cum-Commissioner, Department of State Taxes, Government of Bihar, Patna.

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The Principal Secretary-cum-Commissioner, Department of State Taxes, Government of Bihar, Patna.

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The Additional Commissioner (Appeal), Bhagalpur Division, Bhagalpur.

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The Joint Commissioner, State Tax, Lakhisarai Circle, District - Lakhisarai.

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The Assistant Commissioner of State Tax, Lakhisarai Circle, District -

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Lakhisarai.

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The Executive Engineer, Rural Works Division Department, Sheikhpura,

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P.S. and District - Sheikhpura.

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The Senior Branch Manager, Bank of Baroda, Sheikpura Branch, District -

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Sheikhpura.

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The Branch Manager, State Bank of India, Sheikhpura Branch, District - Sheikhpura.

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... ... Respondent/s ====================================================== Appearance : For the Petitioner : Mr.Lakshmi Kant Tiwary, Adv. For the State : Mr.Vikash Kumar, sc-11 ====================================================== CORAM: HONOURABLE THE CHIEF JUSTICE and HONOURABLE MR. JUSTICE MADHURESH PRASAD ORAL JUDGMENT (Per: HONOURABLE THE CHIEF JUSTICE)

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Date : 13-04-2023

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Patna High Court CWJC No.2446 of 2023 dt.13-04-2023 2/4

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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 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

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Patna High Court CWJC No.2446 of 2023 dt.13-04-2023 3/4

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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 (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

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Patna High Court CWJC No.2446 of 2023 dt.13-04-2023 4/4

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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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With the above liberty, observation and directions, the

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writ petition stands disposed of.

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(K. Vinod Chandran, CJ)

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( Madhuresh Prasad, J)

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Rajkishore/ Shyam Bihari/-

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AFR/NAFR
CAV DATE
Uploading Date	17.04.2023
Transmission Date

Rohit Kumar v. The State of Bihar

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Rohit Kumar v. The State of Bihar

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