Petition challenging the provisions of National and State GST Appellate Tribunal challenged before Gujarat High Court wherein the Court had issued notices to Central Government , State Government and the GST Council.
The petition filed by CA Prateek Gattani and CA Abhishek Chopra, GST consultants contented before the Court that the constitution of benches of National Appellate Tribunal is unconstitutional since the same is contrary to Article 14, 19, 21 and 50 of the Constitution of India as held by Hon’ble Supreme Court of India in the matter of R Gandhi Vs. UOIwherein the constitutional validity of Tribunals was decided in detail.
Prior to GST rollout, each bench of CESTAT had consisted two members, one Judicial Member and one Technical Members.
Section 109 of CGST/ GGST Act provides for constitution of Appellate Tribunal and its benches thereof. The section 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 CGST Act and GGST Act provides for qualification appointment, condition of services, etc for President and members of the Appellate Tribunal.
Advocates for the petitioner Vishal J Daveand Nipun Singhvi said that 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, Petitioner also stated that 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.
Petitioner further stated that the Government till date has not appointed members to these Tribunals. It is sorry state of affairs that GST is almost a year old and various forums have still not been constituted which leads to void in the judicial administration and therefore every-body has to approach High Court for remedy. Further, similar issue has been challenged in case of Advance Authority of Ruling before Hon’ble Gujarat High Court.
