Disposed

M/s Dra S and P Joint Venture v. The State of Bihar

Patna HC15 Apr 2024CWJC/5976/2024

Case brief

AI extract

What is this about?

GST assessee sought stay of tax recovery as the Appellate Tribunal was not constituted and its appeal under Section 112 BGST Act could not be filed. The High Court stayed recovery on deposit of 20% of the remaining disputed tax in addition to amounts under Section 107(6), with liberty to file appeal once the Tribunal is functional.

What did the court decide?

Stay of recovery of balance tax and release of bank account attachment on payment of 20% of remaining disputed tax; appeal to be filed when Tribunal is constituted.

M/s Dra S and P Joint Venture Vs The State of Bihar — GST and Indirect Tax | Patna HC (2024)

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IN THE HIGH COURT OF JUDICATURE AT PATNA Civil Writ Jurisdiction Case No.5976 of 2024

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M/s DRA S and P Joint Venture having its local registered office at 7, 704, Om Vamika Apartment, Mustafapur, Danapur, Pana, Bihar- 801105 through its authorized signatory namely Ajay Kumar Jha (Male), aged about 27 years, Son of Sri Hriday Narayan Jha, resident of Badarpur, Metro Station, G-61 Gali No.-7, G- Block, Mohan Baba Nagar, Police Station- Badarpur, DistrictSouth Delhi, Delhi- 110044.

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... ... Petitioner/s

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Versus

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The State of Bihar through the Commissioner, Department of State Tax, Government of Bihar, Patna.

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The Additional Commissioner of State Tax (Appeals), Patna Central Division, Patna.

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The Assistant Commissioner of State Tax, Shahabad, Patna Central Bihar, Patna.

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... ... Respondent/s

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====================================================== Appearance : For the Petitioner/s : Mr. Sanjeev Kumar, Advocate Mr.Pravashankar Mishra, Advocate For the Respondent/s : Mr.Government Pleader (7)

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====================================================== CORAM: HONOURABLE THE CHIEF JUSTICE and HONOURABLE MR. JUSTICE HARISH KUMAR ORAL JUDGMENT (Per: HONOURABLE THE CHIEF JUSTICE)

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Date : 15-04-2024

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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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2. The petitioner essentially is desirous of availing statutory remedy of appeal against the impugned orders before the Appellate Tribunal (hereinafter referred to as "Tribunal" ) under Section 112 of the Bihar Goods and

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Patna High Court CWJC No.5976 of 2024 dt.15-04-2024 2/4

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

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3. 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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4. 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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5. 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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Patna High Court CWJC No.5976 of 2024 dt.15-04-2024 3/4

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6. 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 Section 112 of the B.G.S.T. Act before the

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Patna High Court CWJC No.5976 of 2024 dt.15-04-2024 4/4

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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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(v) Whatever has been deposited, would be given account in determining the 20 per cent directed to be paid herein.

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7. 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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( Harish Kumar, J)

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ranjan/-