M/S Shaarc Projects Ltd. v. The Union Of India

IN THE HIGH COURT OF JUDICATURE AT PATNA

Civil Writ Jurisdiction Case No.4532 of 2023 ====================================================== M/S Shaarc Projects Ltd. having it registered office at- 309 C, 3rd Floor, Megha Malhar Complex, Sector-1, Gandhi Nagar, Gujarat and Regional Office at- Road No. 2, Laxman Chowk, Benkar Colony, Ambika Nagar, East Champaran, Bihar through its authorized signatory Mr. Mahendra Kumar Mishra, General Manager accounts and Taxation. ... ... 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, P.O. and P.S. North Block, New Delhi- 110001.

2.

The Chief Commissioner, CGST and CX, Office at- C.R Building, 1st Floor, Bir Chand Patel Path, Patna, Bihar.

3.

The State of Bihar, through Commissioner BGST, New Secretariat, Patna. 4.

Joint Commissioner of State Tax, Motihari Circle, Motihari, East Champaran.

5.

Assistant Commissioner of State Tax, Motihari Circle, Motihari, East Champaran.

6.

Additional Commissioner (Appeal) of State Tax, Tirhut Division, Muzaffarpur.

7.

Shaarc projects ltd, registered office at- Essar power MP, District- Singroulli, Madhya Pradesh.

... ... Respondent/s ====================================================== Appearance :

For the Petitioner/s :

Mr. Anurag Saurav, Advocate For the Union of India :

Dr. K. N.Singh, A. S.G.

Mr. Anshuman Singh, Sr. S.G.C.

For the State :

Mr. Vikash Kumar, SC 11 ====================================================== CORAM: HONOURABLE THE CHIEF JUSTICE and HONOURABLE MR. JUSTICE MADHURESH PRASAD ORAL JUDGMENT (Per: HONOURABLE THE CHIEF JUSTICE) Date : 17-04-2023 The instant writ petition has been filed under Article 226 of the Constitution of India seeking multifarious

2/4 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.

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

3/4 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 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 nonconstitution of the Tribunal by the respondentAuthorities, 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

4/4 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) Sunil/- AFR/NAFR NAFR CAV DATE Uploading Date 19.04.2023 Transmission Date