A fortnight after the Madras High Court held the constitution of appellate tribunal under the GST Act to be prima facie contrary to the decision of the Supreme Court according to which technical members on a tribunal shall never exceed the judicial member, the Revenue Bar Association has also challenged its constitution and that of the appellate tribunal under the Tamil Nadu Goods and Services Tax Act.
The Madras High Court has clubbed the petition filed by the Revenue Bar Association with other similar petitions.
In its petition, the Revenue Bar Association has prayed that Chapter XVIII of the Central Goods and Services Tax Act, 2017, more particularly, Sections 109 and 110 of the Central Goods and Services Tax (CGST) Act, 2017 relating to constitution of the appellate tribunal and qualification, appointment and condition of services of its members be declared void, defective and unconstitutional, being violative of Articles 15, 21, 50 of the Constitution of India, and doctrines of separation of powers and independence of judiciary, which are parts of the basic structure of the Constitution.
The petition also submitted that these sections are contrary to the principles laid down by the Supreme Court in Union of India v. R. Gandhi, according to which “[t]wo-Member Benches of the Tribunal should always have a judicial member. Whenever any larger or special benches are constituted, the number of Technical Members shall not exceed the Judicial Members”.
The Supreme Court had also held in that case that “only Judges and Advocates can be considered for appointment as Judicial Members of the Tribunal”.
The instant petition also challenges Chapter XVIII of the Tamil Nadu Goods and Services Tax Act, 2017, more particularly, Sections 109 and 110 of the Tamil Nadu Goods and Services Tax Act, 2017 saying it will have an adverse impact on independence and proper administration of tribunals and access to justice.
The petitioner submitted that “the law envisages the constitution of a two-tier tribunal system i.e. National Bench/Regional Benches and the State Bench/ Area Benches. Jurisdiction of the two constituents of the Appellant Tribunal is also defined. If place of supply is one of the issues in dispute, then the National Bench/ Regional benches of the Tribunal will have jurisdiction to hear the appeal. However, if the dispute relates to issues other than the place of supply, then the State/Area Benches will have the jurisdiction to hear the appeal. An appeal from the decision of the National Bench will lie directly to the Supreme Court and an appeal from the decision of the State Bench will lie to the jurisdictional High Court on substantial questions of law”.
“Section 109 (9) of the CGST Act, contemplates that each State Bench and Area Benches of the Appellate Tribunal shall consist of a Judicial Member, one Technical Member (Centre) and one Technical Member (State) and the State Government may designate the senior most Judicial Member in a State as the State President.
“The coram of the Appellate Tribunal consists of One Judicial Member and two Technical Member, which makes it ‘coram non judice’,” it said.
It is to be noted that the Madras High Court had on a petition moved by Advocate V Vasanthakumar issued a notice to the Centre, the state government and also the GST Council while holding that the constitution of the appellate tribunal under the GST Act is prima facie contrary to the decision of the Supreme Court. A similar petition is pending before the Gujarat High Court too.