Non-Constitution of GST Appellate Tribunal shall not Deprive Assessee’s Statutory Benefit u/s 112(9): Patna HC stays Deposit of Balance Tax Amount

While staying deposit of balance tax amount the High Court of Patna held that non-constitution of Goods and Service Tax appellate tribunal should not deprive assesee’s statutory benefit under section 112(9) of the Bihar Goods and Services Tax Act, 2017.

Vivek Prasad, advocate appeared for the state and Gautam Kumar Kejriwal, Atal Bihari Pandey, Alok Kumar Jha and Mukund Kumar, advocates appeared for the petitioner. K.N. Singh, Anshuman Singh, Prabhat Kumar Singh, Advocates appeared for the central government.

Petitioner SAJ Food Products Pvt. Ltd is a registered company. Petitioner filed the writ petition against the order of the Appellate Tribunal under Section 112 of the Bihar Goods and Services Tax Act 2017 (BGST Act)

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 of the Bihar GST Act.

Counsel for the respondent states acknowledged that act of non-constitution of the Tribunal and come out with a notification 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.

Counsel for the petitioner contended that in terms of the liberty granted under earlier order dated 09.12.2022, in these proceedings; petitioner has already deposited 20 percent of the remaining amount of tax in dispute.

The bench of the Justice Madhuresh Prasad observed that,“If the petitioner makes a deposit of a sum equal to 20 percent of the remaining amount of tax in dispute, in addition to the amount deposited earlier under Sub-Section (6) of Section 107 of the B.G.S.T. Act, then the petitioner must be extended the statutory benefit of stay under Sub-Section (9) of Section 112 of the B.G.S.T. Act, for he could not be deprived of the benefit, due to non constitution of the Tribunal by the respondents themselves”.

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