Patna High Court
Star Build Max Pvt. Limited, Balua ... vs The Union Of India on 11 May, 2023
IN THE HIGH COURT OF JUDICATURE AT PATNA
Civil Writ Jurisdiction Case No.3291 of 2023
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Star Build Max Pvt. Limited, Balua Tal, Motihari, District East Champaran
through its Proprietor Parvez Ahmad Khan, aged about 50 years, Gender-
Male Son of Haseen Ahmad Khan, Resident of Balua Tal, Motihari, P.O.-
Motihari, P.S.- Motihari Town, District- East Champaran.
... ... Petitioner/s
Versus
1. The Union of India through the Principal Chief Commissioner of Central
Tax, Government of India, New Delhi.
2. The Principal Commissioner of Central Tax, Government of India, New
Delhi.
3. The Commissioner Central Tax, Government of India, New Delhi.
4. The Additional Commissioner State Taxes (Appeal) Tirhut Division,
Muzaffarpur.
5. The State of Bihar, through the Principal Chief Commissioner, State Tax,
Bihar, Patna.
6. The Chief Commissioner, State Tax, Bihar, Patna.
7. The Deputy Commissioner, State Taxes, Motihari Tirhut, Bihar.
8. The Joint Commissioner, State Taxes, Motihari Tirhut, Bihar.
... ... Respondent/s
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Appearance :
For the Petitioner/s : Mr.Ranjeet Kumar, Advocate
For the U.O.I. : Mr. Anshuman Singh, Sr. SC, CGST & CX
For the State : Mr. Vivek Prasad, G.P. 7
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CORAM: HONOURABLE THE CHIEF JUSTICE
and
HONOURABLE MR. JUSTICE MADHURESH PRASAD
ORAL JUDGMENT
(Per: HONOURABLE THE CHIEF JUSTICE)
Date : 11-05-2023
Petitioner is concerned with the order passed in
assessment under Section 73 of the Bihar Goods and Services
Tax Act, 2017 (for brevity "the BGST Act") and the specific
contention raised is that there was no notice granted of thirty
days which is a statutory requirement as per Section 73. The
Patna High Court CWJC No.3291 of 2023 dt.11-05-2023
petitioner had filed an appeal which was also dismissed on
merits. However, this contention was not raised before the
Appellate Authority. Since, it is a question of insufficiency of
notice, it ought to have been raised before the Assessing Officer
itself. We are of the opinion that Section 160(2) of the BGST
Act stands against the petitioner. We extract sub-section (2) of
Section 160 hereunder:-
"(2) The service of any notice, order or
communication shall not be called in question,
if the notice, order or communication, as the
case may be, has already been acted upon by the
person to whom it is issued or where such
service has not been called in question at or in
the earlier proceedings commenced, continued
or finalised pursuant to such notice, order or
communication."
The petitioner having not raised the issue before
the Assessing Officer who issued such notice and also having
not raised it in appeal is estopped from raising it in the present
writ petition.
Learned counsel for the petitioner submits that
the assessment order was ex parte but, however, that does not
preclude him from having raised the contention before the
Appellate Authority. It was also ex parte, only because the
Patna High Court CWJC No.3291 of 2023 dt.11-05-2023
assessee did not turn up for hearing. Sub-section (2) of Section
160 of the BGST Act specifically stands against the contention
raised in the writ petition. We are not inclined to permit such
contention to be raised herein.
Learned counsel for the petitioner then submits
that the petitioner is desirous of availing statutory remedy of
appeal against the impugned order 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
Patna High Court CWJC No.3291 of 2023 dt.11-05-2023
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.
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-
Patna High Court CWJC No.3291 of 2023 dt.11-05-2023
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
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.
(K. Vinod Chandran, CJ)
(Madhuresh Prasad, J)
P.K.P./Anushka
AFR/NAFR
CAV DATE
Uploading Date 16.05.2023
Transmission Date
