The Patna High Court has held that the GST dep cannot deprive the benefit of the assessee due to non-constitution of the tribunal and directed to file an appeal under section 112 of the Bihar Goods and Services Tax Act (B.G.S.T. Act), 2017.
Kumar Ram Ranjan Singh, the petitioner was desirous of availing statutory remedy of appeal against the impugned order before the Appellate Tribunal (Tribunal) under Section 112 of the Bihar Goods and Services Tax Act. However, due to the 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 was also prevented from availing the benefit of stay of recovery of the 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 the 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 the office.
The Court comprising Chief Justice K Vinod Chandran and Justice Madhuresh Prasad disposed the Writ petition subject to deposit of a sum equal to 20 per cent 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 Court held that the petitioner cannot be deprived of the benefit, due to non- constitution of the Tribunal by the respondents themselves. Since the 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 the office.
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