Patna High Court
M/S Tanya Construction And ... vs The Commissioner Of Goods And ... on 16 August, 2023
IN THE HIGH COURT OF JUDICATURE AT PATNA
Civil Writ Jurisdiction Case No.8467 of 2023
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M/s Tanya Construction and Plantation Pvt. Ltd. a Private Limited Company
registered Under Company Registration Act 1956, having its Office at 1st
floor. G.K. Mension, New Dakbunglow Road, Patna, Bihar-800001 through
its Director-Ravi Shekhar Sahay, Gender-Male, age about-57 Years, Son of
Late Gauri Shankar Sahay, Near Vidya Sadan, Patel Nagar, Post Office and
Police Station-Shastri Nagar, District-Patna.
... ... Petitioner/s
Versus
1. The Commissioner of Goods and Service Tax, Patna Bihar
2. The Additional Commissioner (Appeal), State Tax, Central Division, Patna.
3. The Assistant Commissioner, (Proper Officer) State Tax, Patna Special
Circle, Patna, Bihar.
... ... Respondent/s
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Appearance :
For the Petitioner/s : Mr. Prasoon Kumar
For the Respondent/s : Mr. Vikash Kumar (SC11)
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CORAM: HONOURABLE THE CHIEF JUSTICE
and
HONOURABLE MR. JUSTICE PARTHA SARTHY
ORAL JUDGMENT
(Per: HONOURABLE THE CHIEF JUSTICE)
Date : 16-08-2023
The instant writ petition has been filed under
Article 226 of the Constitution of India praying for approaching
the Tribunal with respect to three periods, one for year 2018-19,
second for the year 2019-20, and the third is from 1st March,
2019 to 31st March, 2019; for which periods the Assessing
Officer has made separate assessments.
2. The petitioner essentially is desirous of
availing statutory remedy of appeal against the impugned
Patna High Court CWJC No.8467 of 2023 dt.16-08-2023
order(s) 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").
3. However, due to non-constitution of the
Tribunal, the petitioner is deprived of its statutory remedy under
Sub-Section (8) and Sub-Section (9) of Section 112 of the
B.G.S.T. Act.
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.
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.
Patna High Court CWJC No.8467 of 2023 dt.16-08-2023
6. 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
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.
(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
Patna High Court CWJC No.8467 of 2023 dt.16-08-2023
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.
7. It is made clear that for stay of recovery, 20% of the
further demands with respect to each of the said assessment
periods shall be satisfied.
8. With the above liberty, observation and directions,
the writ petition stands disposed of.
(K. Vinod Chandran, CJ)
( Partha Sarthy, J)
Sunil/-
AFR/NAFR NAFR
CAV DATE
Uploading Date 18.08.2023
Transmission Date
