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Another Petition Filed Against Constitution of Appellate Tribunals under GST Act in Madras HC

Team SoOLEGAL 20 Aug 2018 6:30pm

Another Petition Filed Against Constitution of Appellate Tribunals under GST Act in Madras HC

Just after a few weeks when the Constitution of Appellate Tribunals under the Central Goods and Services Tax (GST) Act, 2017 was challenged by Advocate V Vasanthakumar, another petition has been filed against it in the Madras High Court, this time by the Revenue Bar Association.

The petition filed by the Revenue Bar Association came for hearing before the bench of Justices S Manikumar and Subromium Prasad, who allowed the petition to be tagged along with the similar petition filed by Advocate V Vasanthakumar.

Both petitions seek a stay on the operation of Sections 109 and 110 of Chapter XVIII of the Central GST and the corresponding provisions in the Tamil Nadu GST Act.

These provisions emphasize that the Appellate Tribunals for tax matters are to be created by one judicial member, one technical member from the Centre, and one technical member from the State, i.e. two technical members and a judicial member.

Repeating concerns raised by Vasanthakumar in his plea, the Revenue Bar Association has contended that

the provisions concerning the constitution of Appellate Tribunals under the latest GST laws are void, defective and unconstitutional, being violative of Articles 15, 21, 50 of the Indian Constitution”.

Further, it was pointed out how the Supreme Court in Union of India v R Gandhi case has specifically laid down that in no circumstances the number of technical members can surpass judicial members when it comes to the constitution of the tribunals under the Companies Act.

Inter alia, the Court had explained in this judgment, that

when court jurisdiction is transferred to a tribunal, it should have as members, persons of a rank, capacity and status as nearly as possible equal to the rank, status and capacity of the court. This also means that the members should have the independence and security of tenure associated with such judicial tribunals.” 

The petitioners, however, argue that these principles are applicable to all tribunals in India.

Given this position, the Revenue Bar Association has challenged the “Coram” of the appellate tribunal under the GST Act, consisting of one judicial member and two technical members as being “coram non judice”.

The Revenue Bar Association in its petition argues,

“… the effect of sections 109 and 110 of the CGST and TNGST Acts are against the very essence of the principles of judicial independence and separation of powers that not only does the Central Government holds primacy in the appointment of members of such Tribunals but persons with no judicial experience or formal training in law are statutorily envisaged to adjudicate on issues of law.

Post the judgment of the Hon’ble Supreme Court in the case of R. Gandhi (Supra), there is no justification whatsoever to continue such practice.”

Further, considering that only civil servants and judicial officers are qualified for appointment as judicial members to the appellate tribunal, the provisions concerning the constitution of Appellate Tribunals would also deprive members of the legal fraternity the equality of opportunity. But this is contrary to the law laid down in Madras Bar Association v Union of India.

The matter will likely be taken up by the Madras High Court in September.

 

Tagged: Constitution of Appellate Tribunals   GST Appellate Tribunal   Goods and Service Tax   GST   Madras HC   Revenue Bar Association   V Vasanthakumar   Supreme Court  
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