Patna High Court
M/S Flipkart India Private Limited vs The Additional Commissioner Of State ... on 24 April, 2023
Bench: Chief Justice, Madhuresh Prasad
IN THE HIGH COURT OF JUDICATURE AT PATNA
Civil Writ Jurisdiction Case No.5392 of 2023
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M/s Flipkart India Private Limited a Company incorporated under the
Companies Act, 1956 having address at House No.1, Ram Govind Singh Path,
Behind Punch Shiv Sai Mandir, Kankarbagh, Police Station-Kankarbagh,
Patna Bihar-800030, through its Authorized Representative namely Mr.
Sudeep Ojha, aged about 30 years, son of Dinesh Ojha, resident of Village-
Amhara, Near IIT Bihta, Post Office-Amhara, Police Station-Bihta, District-
Patna.
... ... Petitioner/s
Versus
1. The Additional Commissioner of State Tax (Appeal), Central Division,
Patna.
2. The Joint Commissioner of State Tax, Patliputra Circle, Central Division,
Pant Bhawan, Bailey Road, Patna.
3. The Commissioner of State Tax, Bihar Goods and Services Tax, Pant
Bhawan, Bailey Road.
4. The Union of India through the Principal Secretary, Department of Revenue,
Ministry of Finance, Government of India, Central Secretariat, North Block,
New Delhi-110 001.
... ... Respondent/s
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Appearance :
For the Petitioner/s : Mr.Parijat Saurav, Advocate
For the Respondent/s : Dr. K.N. Singh, ASG
Mr.Vivek Prasad ( GP 7 )
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CORAM: HONOURABLE THE CHIEF JUSTICE
and
HONOURABLE MR. JUSTICE MADHURESH PRASAD
ORAL JUDGMENT
(Per: HONOURABLE THE CHIEF JUSTICE) Date : 24-04-2023 The instant writ petition has been filed under Article 226 of the Constitution of India seeking multifarious 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"). Patna High Court CWJC No.5392 of 2023 dt.24-04-2023 2/4 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 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 Patna High Court CWJC No.5392 of 2023 dt.24-04-2023 3/4 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 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 Patna High Court CWJC No.5392 of 2023 dt.24-04-2023 4/4 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.
With the above liberty, observation and directions, the writ petition stands disposed of.
(K. Vinod Chandran, CJ) ( Madhuresh Prasad, J) Shyambihari/ sumit-
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