Disposed

Santosh Prakash v. The State of Bihar

Patna HC5 Aug 2024CWJC/10868/2024

Case brief

AI extract

What is this about?

GST petitioner sought appellate remedy before the unconstituted Tribunal. Court granted stay of recovery on deposit of 20% of remaining disputed tax in addition to prior deposits, directed release of any bank attachment on compliance, and required appeal to be filed once Tribunal becomes functional.

What did the court decide?

Stay of recovery on deposit of 20% of remaining disputed tax plus release of any attached bank accounts, with liberty to file appeal once Tribunal is constituted.

Santosh Prakash Vs The State of Bihar — GST and Indirect Tax | Patna HC (2024)

¶1

IN THE HIGH COURT OF JUDICATURE AT PATNA Civil Writ Jurisdiction Case No.10868 of 2024

¶2

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

¶3

Santosh Prakash, Son of Om Prakash Mahto, Proprietor-Pratham Pharma, GSTIN No. 10BDLPP7684J1Z2, Office at -Jurawan Singh Marg, Darbhanga, Resident of Ward no.11, Ganesh Mandir, Juravan Singh, District-Darbhanga

¶4

... ... Petitioner/s

¶5

Versus

¶6

The State of Bihar

¶7

The Commissioner of Goods and Service Tax, Patna, Bihar.

¶8

The Additional Commissioner (Appeal), State Tax, Darbhanga, Division, Darbhanga.

¶9

The Assistant Commissioner, State Tax, Darbhanga-1, District- Darbhanga, Bihar.

¶10

... ... Respondent/s ====================================================== Appearance : For the Petitioner/s : Mr.Prasoon Kumar, Advocate For the Respondent/s : Mr. Vivek Prasad, G.P.-7 ======================================================

¶11

CORAM: HONOURABLE THE CHIEF JUSTICE and HONOURABLE MR. JUSTICE NANI TAGIA ORAL JUDGMENT (Per: HONOURABLE THE CHIEF JUSTICE)

¶12

Date : 05-08-2024

¶13

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

¶14

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").

¶15

However, due to non-constitution of the

¶16

Patna High Court CWJC No.10868 of 2024 dt.05-08-2024 2/4

¶17

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.

¶18

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.

¶19

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.

¶20

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

¶21

(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

¶22

Patna High Court CWJC No.10868 of 2024 dt.05-08-2024 3/4

¶23

(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 .

¶24

(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.

¶25

(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.

¶26

(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

¶27

Patna High Court CWJC No.10868 of 2024 dt.05-08-2024 4/4

¶28

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

¶29