V. Vasanthakumar Versus Union of India
GST
2018 (8) TMI 1140 – MADRAS HIGH COURT – 2018 (18) G. S. T. L. 224 (Mad.)
MADRAS HIGH COURT – HC
Dated:- 6-8-2018
W. P. No. 14919 of 2018 and W. M. P. Nos. 17635 and 17636 of 2018
GST
P.T. ASHA, AND ABDUL QUDDHOSE, JJ.
Petitioners Adv: V. Vasanthakumar P-In-P
Respondent's Adv: Venkataswamy Babu
(Order of the Court was made by Ms. Indira Banerjee, Chief Justice)
This writ petition has been filed by a practising advocate, in public interest, challenging the vires of Sections 109 and 110 of the Central Goods and Service Tax Act, 2017 (in short, 'CGST Act') and Tamil Nadu Goods and Service Tax Act, 2017, (in short 'TNGST Act') constituting Appellate Tribunal and the qualification, appointment and condition of services of its members.
2. According to the petitioner, the provisions are violative of doctrine of separation of powers and independence of judiciary and also contrary to the principles la
= = = = = = = =
Plain text (Extract) only
For full text:-Visit the Source
= = = = = = = =
by CESTAT Members (Recruitment and Conditions of Service) Rules, 1987. For appointment as a judicial member, the qualification would be that he/she has held a judicial office in the territory of India for at least for 10 years or he/she has been a member of Indian Legal Service and has held a 1st grade post in that service or any equivalent or higher post for at least three years. On the other hand, he/she has been an advocate for at least 10 years. The President, Vice President and members of the CESTAT is approved by a Selection Committee consisting of a Judge of the Supreme Court, being the Chairman of the Selection Committee, the Secretary to Government of India in the Ministry of Finance, the Secretary to Government of India in the Ministry of Law (Department of Legal Affairs), The President and such other persons not more than two as nominated by the Central Government.
5. According to the petitioner, after the Goods and Service Tax Act came into effect, Sections 109 and 110 of
= = = = = = = =
Plain text (Extract) only
For full text:-Visit the Source
= = = = = = = =
Hon'ble Supreme Court in Union of India vs. R. Gandhi, supra, wherein it has been held that the number of technical members should not exceed the judicial members.
7. Mr. Vasanthakumar submitted that it is necessary that those who are called upon to discharge judicial or quasi-judicial powers should have legal expertise, judicial experience and legal training and therefore, in the Bench of Appellate Tribunal, the number of Technical Members should not and cannot be more than the number of judicial members, as the technical member is only to support technical expertise and he/she cannot assume judicial powers.
8. According to the petitioner, appearing in person, the qualification required for a Judicial Member has excluded advocates. He submits that an Advocate is entitled to be selected as judicial member in the Tax Tribunals and there is no explanation for excluding advocates from being selected as Judicial Members. According to him, this is a serious infirmity. Section 110(1)(b
= = = = = = = =
Plain text (Extract) only
For full text:-Visit the Source
= = = = = = = =
ll the Regional Benches will also have judicial members in a minority. The technical members are Revenue Officers from the Centre and State.
11. Mr. Vasanthakumar relied upon the following decisions to buttress his submissions:
(a) Union of India vs. R. Gandhi, reported in (2010) 11 SCC 1;
(b) Kesavananda Bharati vs. State of Kerala [(1973) 4 SCC 225]
12. According to Mr. Vasanthakumar, the provisions of the GST Act, deprive the equality of opportunity to practising Advocates, who are endowed with the qualities of intellect and character, forbearance and patience, temper and resilience in the administration of justice and such qualities give them added advantage and benefit to broaden the perspectives and to discharge the judicial functions effectively.
13. The matter was heard at admission stage and no notice was ordered. 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
= = = = = = = =
Plain text (Extract) only
For full text:-Visit the Source
= = = = = = = =