Patna High Court
Bhagwati Trading Company vs The Union Of India on 17 May, 2023
IN THE HIGH COURT OF JUDICATURE AT PATNA
Civil Writ Jurisdiction Case No.7456 of 2023
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Bhagwati Trading Company, a partnership firm having its office near Bus Stand
Ekma, Police Station-Ekma, Distirct-Saran, Chapra through its partner Ajay Kumar
Gupta male, aged about 55 years, son of Prabhu Nath Prasad, resident of Ward No. 5,
Near Bus Stand Ekma, Police Station -Ekma, District-Saran, Chapra.
... ... Petitioner/s
Versus
1. The Union of India through the Secretary, Ministry of Finance, Department of
Revenue, having its office at Room No. 46, North Block, New Delhi.
2. The Central Board of Indirect Taxes and Customs through its Chairman, Ministry
of Finance, Department of Revenue, having its office at Room No. 46, North
Block, New Delhi.
3. The State of Bihar through the Secretary-cum-Commissioner of State Tax, Bihar
having its office at Vikas Bhawan, Bailey Road, Patna.
4. The Additional Commissioner of State Taxes (Appeal), Saran Division, Chapra.
... ... Respondent/s
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Appearance :
For the Petitioner : Mr. Parijat Saurav, Advocate
For the Respondents : Dr. K.N. Singh, ASG
Mr. Anshuman Singh, CGC
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CORAM: HONOURABLE THE CHIEF JUSTICE
and
HONOURABLE MR. JUSTICE MADHURESH PRASAD
ORAL JUDGMENT
(Per: HONOURABLE THE CHIEF JUSTICE)
Date : 17-05-2023
The instant writ petition has been filed under Article 226
of the Constitution of India seeking multifarious reliefs.
The petitioner essentially 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.
Patna High Court CWJC No.7456 of 2023 dt.17-05-2023
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 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
Patna High Court CWJC No.7456 of 2023 dt.17-05-2023
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 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)
sumit/shashank-
AFR/NAFR NAFR
CAV DATE NA
Uploading Date 19.05.2023
Transmission Date NA
