M/S Akash Traders Through Its ... vs The State Of Bihar
2023 Latest Caselaw 2040 Patna

         IN THE HIGH COURT OF JUDICATURE AT PATNA
                     Civil Writ Jurisdiction Case No.6285 of 2023
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M/S Akash Traders through its proprietor, Namita Kumari, Female, aged about 45 years, W/o Ajay Kumar, Resident of Muradpur Bochaha, Ahiyapur, P.S.- Ahiyapur, District- Muzaffarpur, Pin-843103

... ... Petitioner/s Versus

1. The State of Bihar through the Commissioner of State Tax, Patna.

2. The Joint Commissioner of State Tax, Muzaffarpur East, Tirhut Bihar State/UT, Bihar.

3. Assistant Commissioner of State Tax, Muzaffarpur East, East Circle, Muzaffarpur.

... ... Respondent/s ====================================================== Appearance :

For the Petitioner/s : Mr. Md. Jubair Ansari, Advocate For the Respondent/s : Mr. P.K Shahi, AG ====================================================== CORAM: HONOURABLE THE CHIEF JUSTICE and HONOURABLE MR. JUSTICE MADHURESH PRASAD ORAL JUDGMENT (Per: HONOURABLE THE CHIEF JUSTICE)

Date : 01-05-2023

The petitioner is, before us, challenging the

orders of the Assessing Officer passed at Annexure-1 and 2

respectively for the years 2018-19 and 2019-20. In

Annexure-1, the Assessing Officer found that the taxable

person has claimed excess ITC coming to almost Rs.

91,84,390/-. The dealer claimed ITC in the 3B return far in

excess of the credit available in GSTR-2A. Patna High Court CWJC No.6285 of 2023 dt.01-05-2023

2. In the year 2019-20 also, a similar claim was

made amounting to Rs. 26,32,732/-. A demand was made

insofar as the excess claim along with interest and penalty.

3. The learned counsel for the petitioner, before

us, submits that he is ready to pay the amount but, however,

there is an appellate remedy available before the Tribunal

and the Tribunal has not been constituted.

4. The Bihar Goods and Services Tax Act, 2017

by Section 107 provides for an appeal before the Appellate

Authority, who is the department official. When the first

appellate remedy is available and not availed of, the

assessee cannot straightaway approach the second appellate

remedy before the Tribunal. The petitioner having not

approached the first Appellate Authority as such, there is no

question of leaving the petitioner's right to appear before the

Tribunal which is a second Appellate Authority. The attempt

of the petitioner is to get the recovery stayed till the

constitution of the Tribunal. Such orders passed by us, on

deposit of 20% of the further tax disputed, cannot be sought

by persons who were not diligent enough to approach the

first Appellate Authority and are thus disentitiled from Patna High Court CWJC No.6285 of 2023 dt.01-05-2023

seeking any remedy before the Tribunal.

5. In such circumstances, we find no reason to

entertain the writ petition and the same is dismissed.

                                             (K. Vinod Chandran, CJ)


                                               ( Madhuresh Prasad, J)
Aditya/Sujit
AFR/NAFR                NAFR
CAV DATE                N/A
Uploading Date          04.05.2023.
Transmission Date       N/A