The Gujarat High Court has issued notice to the Centre, Gujarat government and the Goods and Service Tax Council on a petition moved by two chartered accountants challenging the constitution of the National and State GST Appellate Tribunal which they said was “plenary illegal” with just one judicial member.
Justice Akil Kureshi and Justice BN Karia issued notice returnable on July 2, 2018 on the petition challenging the constitutional vires of Section 109 of the Central Goods and Services Tax Act as also that of the Gujarat Goods and Services Tax Act pertaining to constitution of the Central as well as State Appellate Tribunals contending that the Act envisages constitution of such tribunals with one judicial member and two technical members leaving the judicial members in minority.
Petitioners Prateek Gattani and Abhishek Chopra said pre-GST regime under indirect tax laws had each bench of CESTAT with two members -- one judicial member and one technical member.
The post-GST regime, however, has Section 109 of CGST/ GGST Act which provides that each national bench/ regional bench and state bench/ area bench shall consist of a judicial member, one technical member (Centre) and one technical member (state). Section 110 of the CGST Act and GGST Act provides for qualification appointment, condition of services, etc., for the president and members of the appellate tribunal.
The petition contended that the constitution of benches of National Appellate Tribunal is unconstitutional since the same is contrary to Articles 14, 19, 21 and 50 of the Constitution of India as held by the Supreme Court in R Gandhi v UOI wherein the constitutional validity of tribunals was decided in detail.
Advocates for the petitioner Vishal J Dave and Nipun Singhvi said: “The Tribunal as such suffers from serious defects as the majority of members has to be judicial and making the three-member Tribunal of two Technical and one Judicial member is plenary illegal and unconstitutional and in consonance with the guidelines laid down by Hon’ble Supreme Court in the Matter of R Gandhi. Further, the Technical members are to assist the Judicial members but cannot out-number / exceed the Judicial Member, as that will amount to Coram non-judice and entire proceedings shall be bad in law”.
The petitioner further stated that the government has till date not appointed members to these tribunals.