Hemant Kumar Gupta v. State Of Bihar

IN THE HIGH COURT OF JUDICATURE AT PATNA

Civil Writ Jurisdiction Case No.15096 of 2024 ====================================================== Hemant Kumar Gupta son of Nageshwar Prasad Gupta, Resident of Ward No.- 12, M.G. Road, District- Khagaria, Pin Code- 851204 (Proprietor- M/s Laxmi Store, GSTIN- 10AZIPG7890B1ZN).

... ... Petitioner/s

Versus

1.

State of Bihar through its Principal Secretary, Bihar Goods and Services Tax. 2.

Additional Commissioner, State Tax (Appeal), Purnea Division, Purnea. 3.

Joint Commissioner of State Tax (GST), Khagaria, Circle- Khagaria. 4.

Indo Nissin Foods Private Limited, Shalimar Cold Storage, Bypass Road, Anishabad, Patna, Bihar, 800002. (GSTIN- 10AAAC13503K1Z6). 5.

Trinity Beverages P. Ltd., 2nd Floor, H/O- Ramashankar Singh, Main Road, Kankarbagh, Near Vishal Mega Mart, Patna, Bihar, 800020 (GSTIN 10AABCT6419Q1Z5).

6.

Santosh Bhagat, Prop. M.B. Stores, Karpooristhan Chowk, Goushala Road, Begusarai, Begusarai, Bihar, 851101, (GSTIN- 10ADEPB7829D1Z6). 7.

Rajeev Kumar, Prop. Maa Ambe Agency, Nauranga Main Road, Begusarai, Nauranga Main Road, Begusarai, Bihar, 851101 (GSTIN10BMHPK9362H1Z2). ... ... Respondent/s ====================================================== Appearance :

For the Petitioner/s :

Mr. Sujeet Narayan, Advocate For the Respondent/s :

Government Pleader (7) ====================================================== CORAM: HONOURABLE THE CHIEF JUSTICE and HONOURABLE MR. JUSTICE PARTHA SARTHY ORAL JUDGMENT (Per: HONOURABLE THE CHIEF JUSTICE)

2/5 Date : 03-10-2024

1. 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 "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

3/5 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 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

4/5 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 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) Whatever has been deposited, would be given account in determining the 20% directed to be paid therein.

7. The learned counsel for the petitioner submits that some amounts have already been paid.

8. In such circumstance, if any amounts have been paid and the Assessing Officer is satisfied of the same, only the balance of the 20% would be paid. However, we leave it to the Assessing Officer to compute the amounts paid and determine whether the 20% as directed, has been paid.

9. With the above liberty, observation and

5/5 directions, the writ petition stands disposed of. (K. Vinod Chandran, CJ) ( Partha Sarthy, J) Bibhash/- AFR/NAFR NA CAV DATE NA Uploading Date 5.10.2024 Transmission Date NA