Disposed

M/s Maa Rajeshwari Construction Pvt. Ltd. v. The Union of India

Patna HC10 Jul 2023CWJC/9500/2023

Case brief

AI extract

What is this about?

In a writ petition under Article 226, the Patna High Court granted a conditional stay on tax recovery to a petitioner unable to appeal due to the non-constitution of the State GST Appellate Tribunal. The Court allowed a 20% deposit to avail the stay but mandated filing an appeal once the Tribunal is functional.

What did the court decide?

Stay of tax recovery granted subject to deposit of 20% of the remaining disputed amount and filing of appeal once the Tribunal is constituted.

M/s Maa Rajeshwari Construction Pvt. Ltd. Vs The Union of… — GST and Indirect Tax | Patna HC (2023)

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IN THE HIGH COURT OF JUDICATURE AT PATNA Civil Writ Jurisdiction Case No.9500 of 2023

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M/s Maa Rajeshwari Construction Pvt. Ltd. having its place of business at Phulwariya, Maker, District Saran, through its Authorized Signatory Birendra Kumar Yadav, aged about 59 Years, Gender Male, son of Kamala Prasad Yadav, Resident of Village Phulwariya, P.S. Maker, District Saran.

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... ... Petitioner/s

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Versus

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The Union of India through the Secretary, Ministry of Finance, Government of India, New Delhi.

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The Principal Chief Commissioner of Central GST and CX, Central Revenue Building, Birchand Patel Path, Patna.

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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 Additional Commissioner of State Taxes (Appeals), Saran Division, Chapra.

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The Joint Commissioner of State Tax, Saran Circle, Chapra.

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... ... Respondent/s ====================================================== Appearance : For the Petitioner/s : Mr. Alok Kumar, Advocate For the UOI : Dr. K.N.Singh, ASG Mr. Anshuman Singh, Sr. SC, CGST & CX For the State : Mr. Raghwanand, G.A.11 Mr. Sanjay Kumar Tiwari, A.C. to G.A.11

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====================================================== CORAM: HONOURABLE THE CHIEF JUSTICE and HONOURABLE MR. JUSTICE PARTHA SARTHY ORAL JUDGMENT (Per: HONOURABLE THE CHIEF JUSTICE)

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Date : 10-07-2023

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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" )

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Patna High Court CWJC No.9500 of 2023 dt.10-07-2023 2/4

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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 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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Patna High Court CWJC No.9500 of 2023 dt.10-07-2023 3/4

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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 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

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Patna High Court CWJC No.9500 of 2023 dt.10-07-2023 4/4

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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

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directions, the writ petition stands disposed of.

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(K. Vinod Chandran, CJ)

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( Partha Sarthy, J)

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Saurabh/Bibhash

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AFR/NAFR CAV DATE Uploading Date 11.07.2023 Transmission Date

M/s Maa Rajeshwari Construction Pvt. Ltd. v. The Union of India

Case brief

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M/s Maa Rajeshwari Construction Pvt. Ltd. v. The Union of India

Case brief

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