Bablu Kumar vs. Union Of INDIA
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The petitioner, Bablu Kumar, filed a writ petition challenging orders passed by the Assistant Commissioner and the Additional Commissioner (Appeal) of Bihar State GST. The petitioner's appeal before the Additional Commissioner was rejected without an opportunity to be heard or a reasoned order. The petitioner also sought to quash subsequent orders from the District Magistrate and Executive Engineer directing the recovery of due GST from him. The primary grievance is the inability to file a statutory appeal before the Appellate Tribunal under Section 112 of the Bihar Goods and Services Tax Act due to its non-constitution. This prevents the petitioner from availing the benefit of a stay on recovery upon depositing a portion of the disputed tax, as provided under Section 112(8) and (9) of the Act.
Held
The Court held that the petitioner cannot be deprived of the statutory benefit of a stay under Section 112(9) of the B.G.S.T. Act due to the non-constitution of the Tribunal by the respondents. Following its previous decision in Angel Engicon Private Limited vs. the State of Bihar & Anr., the Court directed that if the petitioner deposits a sum equal to 20 percent of the remaining amount of tax in dispute, in addition to any amount already deposited under Section 107(6) of the B.G.S.T. Act, the recovery of the balance amount shall be stayed. The Court emphasized that this stay is conditional upon the petitioner filing an appeal before the Tribunal once it is constituted and functional. If the petitioner fails to file an appeal within the specified period after the Tribunal's constitution, the respondent authorities would be at liberty to proceed in accordance with law. The Court did not expressly decide on the quashing of the earlier orders but provided a mechanism for interim relief.
Key Issues
1. Whether the petitioner is entitled to a stay of recovery of the balance amount of tax in dispute, despite the non-constitution of the GST Appellate Tribunal, given the statutory provisions for appeal and stay under Section 112 of the Bihar Goods and Services Tax Act? 2. Whether the orders passed by the Assistant Commissioner and the Additional Commissioner (Appeal) are liable to be quashed for procedural irregularities, specifically the rejection of the appeal without a hearing or a speaking order? Petitioner's Arguments: The petitioner argued that the non-constitution of the Tribunal by the respondents has deprived him of his statutory remedy of appeal and the consequential benefit of a stay on recovery. He contended that the rejection of his appeal by the Additional Commissioner was arbitrary and violative of principles of natural justice. The petitioner relied on the fact that a notification under Section 172 of the B.G.S.T. Act acknowledges the issue of non-constitution of the Tribunal and its impact on limitation periods. Revenue's Arguments: The judgment does not record specific arguments from the revenue or state respondents regarding the petitioner's contentions. However, the court's directions indicate an acknowledgment of the difficulty faced by the petitioner due to the non-functional Tribunal.
Sections Cited
Section 112, Section 107, Section 172, Section 109
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Cause title — parties, addresses and appearances
ORAL ORDER (Per: HONOURABLE MR. JUSTICE MADHURESH PRASAD) 4 25-02-2023 The instant writ petition has been filed under Article 226 of the Constitution of India seeking following reliefs:- “i) To issue a writ in the nature 2/6 of certiorari for quashing the Order Reference No. ZD100322010171L dated 15.03.2022 and Order dated 14.03.2022 in Appeal Case No. GST/PS-08/20-21 bearing ARN AD100820000580Z passed by the Additional Commissioner (Appeal) of State Tax, Bihar State GST, Patna West Division, Patna, whereby and where under the Appeal bearing Reference No. AD1008200000580Z dated 26.08.2020 filed against the Order bearing Reference No.
ZA100320013372M
dated 08.03.2020 passed by the Assistant Commissioner, Bihar State GST, Patna South: Patna West Circle under Section 107 of the Central/ Bihar GST Act, 2017 was rejected without grant of any opportunity of being heard and without any reasoned or speaking Order; And/or (ii) To issue a writ in the nature of certiorari for quashing the Order contained in letter no 9726 dated 05.08.2022 issued under the signature of District Magistrate, Patna directing therein to the Executive Engineer, Building Construction Department, West Division. Danapur, Patna to ensure the payments of due GST from the defaulter contractors and consequently also quash the order contained in letter no.-8160 3/6 dated 17.08.2022 with respect to the petitioner issued under the signature of The Executive Engineer, Patna West Building Division, Danapur Patna whereby and whereunder it is mandated to the petitioner to deposit the due GST otherwise the petitioner would be deprived from payment/other benefits. (iii) For further restraining the respondents from taking any coercive action against the petitioner for recovery of the amount of tax and interest in terms of the impugned order of the respondent number 7 affirmed in appeal by the respondent no 6 during the pendency of the present writ application.; And/or iv) For further initiating a proceedings of contempt for awarding suitable punishment to Respondent No-6 for intentional and willful violation of the Judgment and Order dated 28.04.2021 passed in CWJC no 2095 of 2021; And/or v) To grant any other relief or reliefs to which the petitioners are entitled in the facts and circumstances of the case.” The petitioner is desirous of availing statutory remedy of appeal against the impugned order before the Appellate 4/6 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 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. Considering the facts and circumstances noted above, this Court in the case of Angel Engicon Private Limited vs. the 5/6 State of Bihar & Anr. passed in C.W.J.C No. 1920 of 2023 has disposed of the writ petition with certain observations and directions, allowing certain liberty to the petitioner, which reads as follows: “If the petitioner makes a deposit of a sum equal to 20 percent of the remaining amount of tax in dispute, in addition to the amount deposited earlier under Sub-Section (6) of Section 107 of the B.G.S.T. Act, then the petitioner must be extended the statutory benefit of stay under Sub-Section (9) of Section 112 of the B.G.S.T. Act, for he 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. The statutory relief of stay on deposit of the statutory amount, 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 6/6 into existence of the Tribunal, for facilitating consideration of the appeal. 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 application stands disposed of.” The instant writ petition is disposed of in the same terms, allowing the petitioner liberty as has been granted to the petitioner in C.W.J.C. No. 1920 of 2023. shyambihari/- (Chakradhari Sharan Singh, ACJ) ( Madhuresh Prasad, J) U
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.