M/S Shakti Infotech Pvt. Ltd. v. The Union Of India

IN THE HIGH COURT OF JUDICATURE AT PATNA

Civil Writ Jurisdiction Case No.16663 of 2024 ====================================================== M/s Shakti Infotech Pvt. Ltd. is Company Registered under Companies Act, having its office at 3rd Floor, 304 Samridhi Complex, S.P. Verma Road, P.S.- Kotwali, District- Patna through its Authorized Representative namely Roshan Dhandharia, aged about 49 years, Gender- Male, Son of Late Parmeshwar Lal Dhandharia Resident of Flat- 104, Durga Acropolice, Behind BP Petrol Pump, West Boring Canal Road, P.S.- Buddha Colony, DistrictPatna. ... ... Petitioner/s

Versus

1.

The Union of India through The Secretary, Department of Revenue. Ministry of Finance, New Delhi.

2.

The Secretary, Department of Revenue, Ministry of Finance, Government of India, New Delhi.

3.

The Central Board of Indirect Taxes and Customs, Department of Revenue, Ministry of Finance, Government of India, New Delhi 4.

The Chief Commissioner of Central Taxes, 3rd Floor, Central Revenue (Annex) Building, Birchand Patel Path, Patna. 5.

The State of Bihar through the Commissioner -cum Secretary, Commercial Taxes, Govt. of Bihar, Patna.

6.

The Commissioner of State Tax, Vikash Bhawan, Patna. 7.

The Additional Commissioner State Taxes (Appeal), Patna North Division, Patna.

8.

The Assistant Commissioner of State Tax, Patna North, Patna, Department of State Taxes, Government of Bihar, Patna.

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

For the Petitioner/s :

Mr.Vikash Kumar Pankaj, Advocate For the Respondent/s :

Mr.Dr. K.N. Singh (ASG) Mr. Anshuman Singh Sr. SC, CGST&CX Mr. Shivaditya Dhari Sinha, AC to ASG Mr. Devansh Shankar Singh JC to ASG ====================================================== CORAM: HONOURABLE THE CHIEF JUSTICE and HONOURABLE MR. JUSTICE PARTHA SARTHY ORAL JUDGMENT (Per: HONOURABLE THE CHIEF JUSTICE) Date : 29-10-2024 An amendment has been made to Section-112 of the

2/4 Central Goods and Services Tax Act, 2017 substituting "twenty per cent" pre deposit to "ten per cent" for maintaining an appeal before the Goods and Services Tax Tribunal. The Tribunal has not yet been constituted and this Court had been granting orders based on the judgment in SAJ Food Products Pvt. Ltd. vs. The State of Bihar & Others in C.W.J.C. No. 15465 of 2022, allowing the assessee to deposit twenty per cent of the disputed amount of tax, till the Tribunal is constituted and an appeal is filed also allowing stay of recovery.

2. As of now pre-deposit has been reduced to "ten per cent" but however, the same is made effective only from 01.11.2024. It is an admitted position that the GST Tribunals have not been constituted as yet and there is no possibility of an appeal being filed prior to 01.11.2024. In such circumstance we direct that the assessee on payment of "ten per cent" of the tax amounts in dispute shall be entitled to stay of recovery till the Tribunal is constituted and an appeal is filed within such term as provided therein.

3. 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 10 percent of the amount of tax in dispute, if not already deposited, in

3/4 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. (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 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 appeal under Section 112 of

4/4 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 10 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.

4. With the above liberty, observation and directions, the writ petition stands disposed of.

(K. Vinod Chandran, CJ) (Partha Sarthy, J) ranjan/- AFR/NAFR NAFR CAV DATE NA Uploading Date Transmission Date NA