M/S Shree Hari Construction And Consultancy vs. The Union Of INDIA
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The petitioner, M/s Shree Hari Construction and Consultancy, filed a writ petition seeking to avail the statutory remedy of appeal before the Appellate Tribunal under Section 112 of the Bihar Goods and Services Tax (B.G.S.T.) Act against an order dated 02.02.2023 passed by the Additional Commissioner, State Taxes (Appeal). However, the petitioner was unable to file the appeal due to the non-constitution of the Tribunal. This prevented the petitioner from availing the benefit of a stay on the recovery of the balance tax amount, as contemplated under Section 112(8) and (9) of the B.G.S.T. Act, upon depositing the required pre-deposit. The respondent State authorities had issued a notification (S.O. 399 dated 11.12.2019) under Section 172 of the B.G.S.T. Act, stating 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 must be extended the statutory benefit of stay under Sub-Section (9) of Section 112 of the B.G.S.T. Act, 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. The Court reasoned that the petitioner cannot be deprived of this benefit due to the non-constitution of the Tribunal by the respondents themselves. Consequently, the recovery of the balance amount and any steps taken in that regard were deemed to be stayed. The Court also held that this relief cannot be open-ended. To balance equities, the petitioner would be required to present and file their appeal under Section 112 of the B.G.S.T. Act once the Tribunal is constituted and functional. The appeal must be filed observing statutory requirements after the Tribunal's existence. If the petitioner chooses not to file an appeal within a specified period after the Tribunal's constitution, the respondents would be at liberty to proceed in accordance with law. The Court relied on a previous order in the case of SAJ Food Products Pvt. Ltd. vs. The State of Bihar & Others.
Key Issues
1. Whether the petitioner is entitled to the statutory benefit of stay under Sub-Section (9) of Section 112 of the B.G.S.T. Act, despite the non-constitution of the Appellate Tribunal, upon depositing 20 percent of the remaining disputed tax amount? 2. What is the appropriate course of action to balance the equities and ensure the petitioner's right to appeal is preserved, given the delay caused by the respondents' failure to constitute the Tribunal? Petitioner's Arguments: The petitioner argued that they should not be deprived of the statutory benefit of stay under Section 112(9) due to the respondents' own failure to constitute the Tribunal. They contended that the notification issued by the State authorities acknowledged the issue of non-constitution and provided a mechanism for removal of difficulties, implying that the petitioner should not suffer for this procedural lapse. Revenue/State's Arguments: The judgment does not record specific arguments from the revenue or State authorities regarding the petitioner's entitlement to the stay. However, their acknowledgment of the non-constitution of the Tribunal and the issuance of the removal of difficulties notification are noted.
Sections Cited
Section 112, Section 107, Section 172, Section 109
AI-generated summary — verify with the full judgment below
Cause title — parties, addresses and appearances
ORAL JUDGMENT (Per: HONOURABLE THE CHIEF JUSTICE) Date : 17-04-2023 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 order dated 2/4 02.02.2023 passed by the Additional Commissioner, State Taxes (Appeal), Darbhanga Division, Darbhanga in Appeal Case No. AD101222002002I (Annexure-10) 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"). 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. 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 3/4 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. 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 4/4 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 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. With the above liberty, observation and directions, the writ petition stands disposed of.
P.K.P./Anushka (K. Vinod Chandran, CJ) (Madhuresh Prasad, J) AFR/NAFR CAV DATE Uploading Date 19.04.2023 Transmission Date
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.