The Patna High Court, while considering a writ petition seeking to grant stay for the GST demand since the statutory remedy through appeal cannot be invoked due to the non-constitution of GST Tribunal, has refused to grant stay holding that the same would amount to staying the effect of Section 16(4) of the GST Act, 2017.
Before the bench comprising Justice Rajeev Ranjan Prasad, the assessee, M/s Manokamna, a proprietorship firm contended that presently the GST Tribunal is not constituted in the State of Bihar, therefore, the petitioner is deprived of availing of the remedy available under Section 112 of the GST Act which provides for appeals to the appellate tribunal.
While pronouncing the oral order, the High Court observed that “in the prayer portion of the writ application in paragraph ‘1’ (L), the petitioner has prayed for quashing of the order dated 16.12.2021 and summary of the demand issue in form GST APL-04 dated 21.12.2021, the petitioner has also challenged the order passed under Section 73 of the GST Act and the summary demand issued in Form GST DRC-07 dated 03.03.2020 but from the tone and tenor of the prayer itself it is clear that such reliefs are by way of consequential reliefs and unless the petitioner succeeds in challenging the vires of Section 16(4), perhaps he may not get the relief as prayed in paragraph ‘1’(L) of the writ application.”
While refusing to stay the order, the Court held that “In the given circumstance, in the opinion of this Court, staying the impugned order in the light of Sub Section (8) of Section 112 of the GST Act would in sum and substance amount to staying the effect of Section 16(4) of the GST Act which this Court would restrain from doing. This Court would take a similar view as has been taken by the Hon’ble Division Bench in C.W.J.C. No. 5703 of 2022. If the petitioner deposits the liability amount in full subject to result of the writ application the saving bank account of the proprietor shall be de-attached.”
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