Patna High Court
M/S Hindustan Construction ... vs The Union Of India on 4 October, 2023
\IN THE HIGH COURT OF JUDICATURE AT PATNA
Civil Writ Jurisdiction Case No.17947 of 2022
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M/s Hindustan Construction Company Ltd. having its Office at 3/11,
Matrichaya, Behind Vindhyachal, Apartment, Yaduvansh Path, Bihar- 800001,
through its authorized representative/signatory Sachin Yeshvant Karkhanis,
aged about 57 years (M), Son of Yeshvant Karkhanis, residing at A-1/701 Lok
Gaurav, LBS Road, Opp- Empire Plaza, Vikhroli West, Tagore Nagar,
Vikhroli, Police Station- Distt.- Mumbai, Maharashtra.
... ... Petitioner/s
Versus
1. The Union of India Through the Secretary, Department of Revenue, Ministry
of Finance, North Block, New Delhi- 110001.
2. The State of Bihar through the Secretary-Cum- Commissioner- Commercial
Taxes, Govt. of Bihar, Vikas Bhawan, Patna.
3. The Joint Commissioner, State Taxes, Central Division, Patliputra Bihar.
4. The Additional Commissioner State Tax (Appeals), Central Division,
Patliputra, Patna.
5. The Secretary-Cum-Commissioner-Commercial Taxes, Govt. of Bihar,
Vikas Bhawan, Patna.
6. The Secretary, Department of Revenue, Ministry of Finance, North Block,
New Delhi- 110001.
7. The Deputy Commissioner, State Taxes, Central Division, Patliputra Circle,
Bihar-cum-Assessing Officer.
... ... Respondent/s
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Appearance :
For the Petitioner/s : Mr.Brisketu Sharan Pandey, Advocate
For the Respondent/s : Dr. K.N. Singh, Additional Solicitor General
Mr. Anshuman Singh, Sr. SC, CGST & CX
Mr. Vikash Kumar, S.C. 11
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CORAM: HONOURABLE THE CHIEF JUSTICE
and
HONOURABLE MR. JUSTICE RAJIV ROY
ORAL JUDGMENT
(Per: HONOURABLE THE CHIEF JUSTICE)
Date : 04-10-2023
1. The instant writ petition has been filed under
Article 226 of the Constitution of India seeking multifarious
reliefs.
2. The petitioner essentially has to avail statutory
Patna High Court CWJC No.17947 of 2022 dt.04-10-2023
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").
3. 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.
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
Patna High Court CWJC No.17947 of 2022 dt.04-10-2023
Section 109 of the B.G.S.T Act, enters office.
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
Patna High Court CWJC No.17947 of 2022 dt.04-10-2023
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.
(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.
(v) Learned counsel for the petitioner also
submits that more than 20 per cent of the
demand is paid. If the petitioner has paid 20 per
cent of the demand over and above 10 per cent
paid at the first appellate stage, then there shall
be stay of the recovery till the Tribunal is
constituted and if the appeal is filed within the
stipulated period, then there shall be stay of the
recovery till the disposal of the appeal.
7. With the above liberty, observation and
directions, the writ petition stands disposed of.
(K. Vinod Chandran, CJ)
(Rajiv Roy, J)
Ravi/-
AFR/NAFR NAFR
CAV DATE
Uploading Date 6.10.2023
Transmission Date
