Disposed

M/s Suresh Pd. Arvind Kumar v. The State of Bihar

Patna HC11 Jul 2023CWJC/7120/2023

Case brief

AI extract

What is this about?

High Court granted petitioner stay of tax recovery and extension of appeal remedy against GST demand despite Tribunal non-constitution, subject to deposit of 20 percent of disputed tax and reservation to file formal appeal.

What did the court decide?

Stay of tax recovery extended on deposit of 20% of balance tax; bank accounts attached to demand shall be released upon same deposit; petitioner to file appeal once Tribunal is constituted.

M/s Suresh Pd. Arvind 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.7120 of 2023

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M/s Suresh Pd. Arvind Kumar Having its address at Bhawani Market, Patel Path, Raxaul, East Champaran-845305, Bihar, Through its Proprietor Mr. Suresh Prasad (M) aged about 61 years, son of Yandav Bal resident of Sriram Path, Koiriya Tola Raxaul, East Champaran 845305, Bihar

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... ... Petitioner/s

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Versus

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The State of Bihar through the Commissioner Cum Secretary, Commercial Tax Department, Government of Bihar, Patna

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The Commissioner of Central Goods and Services Tax and Central Excise, Patna having office at New Secretariat, Patna, Bihar

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The Joint Commissioner of State Tax, Tirhut Division, Muzaffarpur, District Muzaffarpu, Bihar

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The Additional Commissioner of State Tax (Appeal), Tirhut Division, Muzaffarpur, District Muzaffarpur, Bihar

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The Assistant Commissioner of State Tax, Tirhut Division, Muzaffarpur, District Muzaffarpur, Bihar

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The Punjab National Bank, Belwa (East Champaran) Branch, Through it Branch Manager, Belwa, Distt. East Champaran, Bihar-845301

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The Axis Bank, Raxaul Branch, through it Branch Manager, Raxaul, Distt. East Champaran, Bihar-845305

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... ... Respondent/s

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====================================================== Appearance : For the Petitioner/s : Mr. Alok Kumar Sinha, Advocate For the Respondent/s : Mr. Vikash Kumar, SC 11 For the PNB : Mr. Mritunjay Kumar, Advocate Mr. Vibhuti Kumar, Advocate ====================================================== CORAM: HONOURABLE THE CHIEF JUSTICE and HONOURABLE MR. JUSTICE PARTHA SARTHY ORAL ORDER

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(Per: HONOURABLE THE CHIEF JUSTICE)

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3 11-07-2023 The instant writ petition has been filed under

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Article 226 of the Constitution of India seeking multifarious reliefs.

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The petitioner essentially is desirous of availing

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Patna High Court CWJC No.7120 of 2023(3) dt.11-07-2023 2/4

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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 date on which the President, or the State President, as the case may be, of the Tribunal after its constitution under

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Patna High Court CWJC No.7120 of 2023(3) dt.11-07-2023 3/4

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Section 109 of the B.G.S.T Act, enters office.

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This Court is, therefore, inclined to dispose of

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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 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

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Patna High Court CWJC No.7120 of 2023(3) dt.11-07-2023 4/4

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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 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 directions, the

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writ petition stands disposed of.

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(K. Vinod Chandran, CJ)

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( Partha Sarthy, J)

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Bibhash/Saurabh

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