Revenue Bar Association challenges constitution of Appellate Tribunals under GST Act in Madras HC
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Revenue Bar Association challenges constitution of Appellate Tribunals under GST Act in Madras HC

Meera Emmanuel

The constitution of appellate tribunals under the Central Goods and Services Tax (GST) Act, 2017 has been challenged yet again in the Madras High Court, this time by the Revenue Bar Association.

Advocates Karthik Sundaram and Rahul Unnikrishnan appeared for the Revenue Bar Association. The Bench of Justices S Manikumar and Subromium Prasad today allowed the petition to be tagged along with a similar petition filed by Advocate V Vasanthakumar.

Both petitions focus their challenge on Sections 109 and 110 of Chapter XVIII of the Central GST and the corresponding provisions in the Tamil Nadu GST Act.

These provisions lay down that the appellate tribunals for tax matters are to be constituted by one judicial member, one technical member (Centre) and one technical member (State) i.e. two technical members and a judicial member.

Echoing concerns raised by Vasanthakumar in his petition, the Revenue Bar Association has contended that these provisions are void, defective and unconstitutional, being violative of Articles 15, 21, 50 of the Indian Constitution.

Further, in Union of IndiaR Gandhi, the Supreme Court has specifically laid down that the number of technical members cannot exceed judicial members when it comes to the constitution of the tribunals under the Companies Act.

The principles underlying this requirement have also been underscored in the R Gandhi judgment.

Inter alia, it is reasoned 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 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”.

As emphasised in the writ petitions, the dominance of technical members in appellate tribunal Benches would violate the doctrine of separation of powers and infringe upon the independence and impartiality of the judiciary. In their petition, the Revenue Bar Association 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, since only civil servants and judicial officers are eligible for appointment as judicial members to the appellate tribunal, these provisions would also deprive members of the legal fraternity the equality of opportunity.  This is contrary to the law laid down in Madras Bar Association v Union of India.

While issuing notice to the Centre on Vasanthakumar’s petition, the Bench headed by former Chief Justice Indira Banerjee and Justice PT Asha had also formed a prima facie opinion that the constitution of appellate tribunals under the GST Act was contrary to R Gandhi’s case. As stated in their order dated August 6,

On hearing the learned counsel for the petitioner, prima facie it appears that the constitution of the Appellate Tribunal is contrary to the decision in Union of India vs. R.Gandhi, reported in (2010) 11 SCC 1.”

The matter is expected to be taken up in September by the Madras High Court. Last May, the Gujarat High Court also issued notice in a similar challenge.

Read Writ Petition filed by Revenue Bar Association:

Madras-HC-GST-Appellate-Tribunal-RBA-affidavit-1.pdf
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Read Writ Petition filed by Advocate V Vasanthakumar:

MHC-GST-Appellate-Tribunal-GST-2017-Petition.pdf
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Read Order issuing notice passed by the Madras High Court on August 6, 2018:

MHC-GST-Appellate-Tribunal-Challenge-Notice.pdf
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