M/S Gautam Kumar vs. The State Of Bihar

Held

The Court held that the petitioner should 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 the amount already deposited under Section 107(6). The Court reasoned that the petitioner should not be deprived of this benefit due to the non-constitution of the Tribunal by the respondents themselves. The recovery of the balance amount and any steps taken for recovery were deemed to be stayed. The Court also directed that the petitioner must file 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 specified period after the Tribunal's constitution, the respondent authorities would be at liberty to proceed. Additionally, if the 20 percent deposit is made, any attachment of the petitioner's bank account pursuant to the demand shall be released. The Court noted that similar relief was granted in the case of SAJ Food Products Pvt. Ltd. vs. The State of Bihar & Others.

Facts

The petitioner, M/s Gautam Kumar, 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. However, the Tribunal was not constituted, preventing the petitioner from filing an appeal and consequently from obtaining a stay on the recovery of the balance tax amount as per Section 112(8) and (9) of the B.G.S.T. Act. The State authorities acknowledged the non-constitution of the Tribunal and issued a notification (Order No. 09/2019-State Tax, S. O. 399, dated 11.12.2019) under Section 172 of the B.G.S.T. Act, stating that the limitation period for filing an appeal would commence only after the Tribunal's constitution and the entry of office by its President. The petitioner had previously deposited 10% of the tax under Section 107(6) for the first appeal.

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 amount of tax in dispute? Petitioner's contention: The petitioner argued that they are being deprived of their statutory remedy of appeal and the consequential benefit of stay due to the respondents' failure to constitute the Tribunal. They sought to avail the stay benefit by depositing the stipulated pre-deposit amount. Revenue/State's contention: The respondent State authorities acknowledged the non-constitution of the Tribunal and issued a notification to address the issue of limitation. They did not explicitly contest the petitioner's claim for stay but relied on the notification regarding the commencement of the limitation period.