Patna High Court
Naveen Kumar vs The Union Of India on 22 January, 2024
Bench: Chief Justice, Rajiv Roy
IN THE HIGH COURT OF JUDICATURE AT PATNA
Civil Writ Jurisdiction Case No.1148 of 2024
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Naveen Kumar Son of Lal Narayan Sharma, Resident of village - Pakhan
Pura, Jaitipur, Kurua, P.S. - Okari, District- Jehanabad.
... ... Petitioner/s
Versus
1. The Union of India Through the Secretary Department of Revenue, Ministry
of Finance, North Block, New Delhi -110001.
2. The Secretary Department of Revenue, Ministry of Finance, North Block,
New Delhi- 110001.
3. The State of Bihar through the Commissioner cum Secretary, Commercial
Tax Department, Govt. of Bihar, Patna.
4. The Commissioner cum Secretary, Commercial Tax Department, Govt. of
Bihar, Patna.
5. The Addl. Commissioner (Appeals), Magadh Division, Gaya.
6. The Joint Commissioner of State Tax, Jehanabad.
7. The Deputy Commissioner of State Tax, Jehanabad.
... ... Respondent/s
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Appearance :
For the Petitioner/s : Mr. Brisketu Sharan Pandey, Advocate
For the Respondent/s : Dr. K.N. Singh, ASG
Mr. Anshuman Singh, Sr. SC, CGST & CX
Mr. Vivek Prasad, GP-7
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CORAM: HONOURABLE THE CHIEF JUSTICE
and
HONOURABLE MR. JUSTICE RAJIV ROY
ORAL JUDGMENT
(Per: HONOURABLE THE CHIEF JUSTICE)
Date : 22-01-2024
The instant writ petition has been filed under
Article 226 of the Constitution of India seeking multifarious
reliefs.
2. The petitioner essentially is desirous of
availing statutory remedy of appeal against the impugned order
before the Appellate Tribunal (hereinafter referred to as
Patna High Court CWJC No.1148 of 2024 dt.22-01-2024
"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
Section 109 of the B.G.S.T Act, enters office.
6. This Court is, therefore, inclined to dispose of
Patna High Court CWJC No.1148 of 2024 dt.22-01-2024
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
Patna High Court CWJC No.1148 of 2024 dt.22-01-2024
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.
(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. With the above liberty, observation and
directions, the writ petition stands disposed of.
(K. Vinod Chandran, CJ)
( Rajiv Roy, J)
Sudha/PKP
AFR/NAFR
CAV DATE
Uploading Date 23.01.2024.
Transmission Date
