After 5 years of introduction of GST, in spite of the provisions in the section taxpayers had to approach Hon. High Courts of respective Jurisdiction, since there were no alternative remedies available to the taxpayer in absence of formation of Appellate Tribunal and benches thereof.
Subsequent to Madras High Court decision in the case of Revenue Bar Association Vs Union of India clearly held :
- Section 110(1)(b)(iii) of the CGST Act which states that a Member of the Indian Legal Services, who has held a post not less than Additional Secretary for three years, can be appointed as a Judicial Member in GSTAT, is struck down.?
- Section 109(3) and 109(9) of the CGST Act, 2017, which prescribes that the tribunal shall consists of one Judicial Member, one Technical Member (Centre) and one Technical Member (State), is struck down.?
- The argument that Sections 109 & 110 of the CGST Act, 2017 and TNGST Act, 2017 are ultra vires, in so far as exclusion of lawyers from the scope and view for consideration as members of the tribunal, is rejected. Parliament must consider to amend section for including lawyers to be eligible to be appointed as Judicial Members to the Appellate Tribunal in view of the issues which are likely to arise for adjudication under the CGST Act and in order to maintain uniformity in various statutes.
Thereafter Hon Supreme Court also observed Government had no option but to constitute the Goods and Services Tax (GST) Appellate Tribunal and thereafter, GST Council has initiated the steps including formation of committee and recommendations in 49th GST Council Meeting.?
Important Provisions of the Finance Bill as approved is given below:
- Constitution of Appellate Tribunal against the order passed by Appellate Authority or revisional authority.
- Principal Bench of Appellate Tribunal will be constituted at New Delhi which will consist of Resident Judicial Member, Technical member of Centre and Technical member of State.
- On recommendation of states, Government will constitute such number of State Benches, places & jurisdictions thereof will be notified. Bench will consist of 2 judicial members, 1 technical member (central), 1 technical member (State).?
- The Principal Bench & State Bench will deal all the appeals filed against order of Appellate Authority or Revisional Authority. However, State Benches will not hear the cases relating to issues involved to the place of supply.
- Senior most judicial member within the state benches will act as a Vice President.
- Appeals where tax or ITC involved or amount of fine, fees or penalty does not exceed Rs 50 lacs and does not involve question of law with the approval of the President can be heard by Single Member and in all other cases by one judicial member and one technical member.
Similarly, provisions relating to appointment of President and members of Appellate Tribunal, qualifications, service conditions etc. has been also very clearly provided.
Now, after formation of Appellate Tribunal, number of cases filed with the High Court may get transferred or can be withdrawn and appeals can be filed before Appellate Tribunal. Therefore, time limit of filing appeals was extended automatically to 3 months after constitution of Appellate Tribunal vide Circular No. 132/2/2020-GST dtd 18th March,2020 and Hon High Court has directed the Departmental Officers in the case of Gulf Oil Lubricants India Ltd. v. Joint Commissioner of State Tax & Ors not to initiate the recovery if the taxpayer is challenging the demand order in the GST Tribunal.
By CMA Ashok B Nawal - Founder
Bizsolindia Services Pvt. Ltd.
