M/S Keshav Contractor Privet Limited vs. The Union Of INDIA
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M/s Keshav Contractor Private Limited (the petitioner) filed a writ petition under Article 226 of the Constitution of India seeking to avail the statutory remedy of appeal against impugned orders before the Appellate Tribunal under Section 112 of the Bihar Goods and Services Tax Act (B.G.S.T. Act). The petitioner was unable to file the appeal due to the non-constitution of the Tribunal, which also prevented them from availing the benefit of stay of recovery of the balance tax amount under Section 112(8) and (9) of the B.G.S.T. Act upon depositing the stipulated amounts. The respondent State authorities acknowledged the non-constitution of the Tribunal and issued a notification under Section 172 of the B.G.S.T. Act, providing that the period of limitation for preferring an appeal would commence only after the President of the Tribunal entered office.
Held
The Court held that the petitioner cannot be deprived of the statutory benefit of stay under Sub-Section (9) of Section 112 of the B.G.S.T. Act due to the non-constitution of the Tribunal by the respondents. The Court reasoned that the petitioner must be extended this benefit, subject to the deposit of a sum equal to 20 percent of the remaining amount of tax in dispute, in addition to any amount already deposited under Sub-Section (6) of Section 107 of the B.G.S.T. Act. The recovery of the balance amount and any steps taken for it will be deemed stayed. The Court also held that this relief of stay cannot be open-ended. The petitioner will be required to present their appeal under Section 112 of the B.G.S.T. Act once the Tribunal is constituted and functional. If the petitioner fails to file the appeal within the period specified upon the Tribunal's constitution, the respondents will be at liberty to proceed. The Court also directed the release of any attached bank account of the petitioner if the 20 percent deposit is made. The ratio is that statutory remedies and benefits should not be denied due to administrative delays in establishing statutory forums.
Key Issues
1. Whether the petitioner can be deprived of the statutory benefit of stay under Section 112(9) of the B.G.S.T. Act due to the non-constitution of the Appellate Tribunal by the respondents? The petitioner argued that they are being prevented from availing their statutory remedy and the consequential benefit of stay due to the respondents' failure to constitute the Tribunal. They contended that the period of limitation for filing an appeal should not commence until the Tribunal is functional. The petitioner relied on the principle that a party should not suffer due to the inaction of the authorities. The revenue or State contended that while the non-constitution of the Tribunal is acknowledged, the petitioner must still comply with the pre-conditions for availing the stay, such as depositing a portion of the disputed tax amount.
Sections Cited
Section 112, Section 107, Section 172, Section 109
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Cause title — parties, addresses and appearances
ORAL JUDGMENT (Per: HONOURABLE THE CHIEF JUSTICE) Date : 18-03-2024 The instant writ petition has been filed under Article 226 of the Constitution of India seeking multifarious reliefs.
The petitioner essentially is desirous of availing statutory remedy of appeal against the impugned orders Annexure-P1 and P6 before the Appellate Tribunal (hereinafter 2/4 referred to as "Tribunal") under Section 112 of the Bihar Goods and Services Tax Act (hereinafter referred to as "B.G.S.T. Act").
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.
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. 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.
3/4
This Court is, therefore, inclined to dispose of the instant writ petition in the following terms:- (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 State of Bihar & Others in C.W.J.C. No. 15465 of 2022. (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 non- constitution of the Tribunal by the respondent- Authorities, 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. (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 4/4 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. (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. (v) Whatever has been deposited, would be given account in determining the 20 per cent directed to be paid herein.
With the above liberty, observation and directions, the writ petition stands disposed of.
ranjan/- (K. Vinod Chandran, CJ) (Harish Kumar, J) AFR/NAFR NAFR CAV DATE NA Uploading Date 20.03.2024 Transmission Date NA
Reproduced from the public record of the Patna High Court. Verify against the court's own copy before relying on it. Income tax judgments are on bharattax.net.