M\/s. Global Associates Versus Union of India Ministry of Finance,
GST
2019 (2) TMI 388 – KARNATAKA HIGH COURT – [2019] 69 G S.T.R. 161 (Kar)
KARNATAKA HIGH COURT – HC
Dated:- 24-1-2019
WRIT PETITION Nos. 56586 \u2013 56588\/2018 (T-TAR)
GST
MRS. S. SUJATHA J.
\nPETITIONER [BY SRI V. RAGHURAMAN, ADV.]
\nRESPONDENTS [BY SRI AMIT DESHPANDE, SENIOR STANDING COUNSEL FOR R-1 & R-3; SRI T.K.VEDAMURTHY, AGA FOR R-2, R-4 & R-5.)
\nO R D E R
\nThe petitioner is claiming the following reliefs in the writ petition filed under Articles 226 and 227 of the Constitution of India:-
\n(A) Writ of declaration or any other appropriate writ, order or direction to declare entry 5(b) of Schedule II to the GST Act, 2017 (enclosed as Annexure-A) as unconstitutional being violative of Article 366(29A) of the Constitution.
\n(B) Writ of declaration or any other appropriate writ, order or direction to declare entry 5(b) of Schedule II to the CGST Act, 2017 (enclosed as Annexure-A) being <\/p>\n
= = = = = = = =<\/p>\n
Plain text (Extract) only<\/strong> = = = = = = = =<\/p>\n towards the transfer of land\/undivided share in the land; = = = = = = = =<\/p>\n Plain text (Extract) only<\/strong> = = = = = = = =<\/p>\n e provisions of the Act, and the Notification and Circular issued by the respondent authorities have been challenged without there being any cause of action. = = = = = = = =<\/p>\n Plain text (Extract) only<\/strong> = = = = = = = =<\/p>\n 7 – CALCUTTA HIGH COURT, the High Court of Calcutta held that the issue as to whether the fundamental right of a doctor to carry on practice in medical profession stands violated by the provisions of the West Bengal Clinical Establishments (Registration, Regulation and Transparency) Act of 2017 or not is required to be considered. It is observed that the petitioners therein have canvassed a point of view which makes out a case to go to trial. Therefore, the petition discloses a cause of action. = = = = = = = =<\/p>\n Plain text (Extract) only<\/strong> = = = = = = = =<\/p>\n e of action has emerged. = = = = = = = =<\/p>\n Plain text (Extract) only<\/strong> = = = = = = = =<\/p>\n fected by the action initiated by the executive in furtherance of such legislation\/administrative Circular\/Notification more particularly, in taxing statutes. Cause of action is sine qua non for challenging such legislation\/ Notification\/Circular. The writ Court cannot adjudicate upon such matters in vacuum. Adjudication of such issues sans any cause of action would be merely academic, consuming public time de hors the litigants waiting in serpentine queue seeking justice before the courts for the relief\/s sought for, arising out of the cause of action. The petitioner involved in construction activity or works contract would not be suffice to examine the constitutional vires of the Act and the related Notification\/Circular unless the cause of action emerges. = = = = = = = =<\/p>\n Plain text (Extract) only<\/strong> = = = = = = = =<\/p>\n","protected":false},"excerpt":{"rendered":" M\/s. Global Associates Versus Union of India Ministry of Finance,GST2019 (2) TMI 388 – KARNATAKA HIGH COURT – [2019] 69 G S.T.R. 161 (Kar)KARNATAKA HIGH COURT – HCDated:- 24-1-2019WRIT PETITION Nos. 56586 \u2013 56588\/2018 (T-TAR) GSTMRS. S. SUJATHA J. PETITIONER [BY SRI V. RAGHURAMAN, ADV.] RESPONDENTS [BY SRI AMIT DESHPANDE, SENIOR STANDING COUNSEL FOR … Continue reading “M\/s. Global Associates Versus Union of India Ministry of Finance,”<\/span><\/a><\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"closed","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[],"tags":[],"class_list":["post-16639","post","type-post","status-publish","format-standard","hentry"],"_links":{"self":[{"href":"https:\/\/goodsandservicetax.in\/GST\/index.php?rest_route=\/wp\/v2\/posts\/16639","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/goodsandservicetax.in\/GST\/index.php?rest_route=\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/goodsandservicetax.in\/GST\/index.php?rest_route=\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/goodsandservicetax.in\/GST\/index.php?rest_route=\/wp\/v2\/users\/1"}],"replies":[{"embeddable":true,"href":"https:\/\/goodsandservicetax.in\/GST\/index.php?rest_route=%2Fwp%2Fv2%2Fcomments&post=16639"}],"version-history":[{"count":0,"href":"https:\/\/goodsandservicetax.in\/GST\/index.php?rest_route=\/wp\/v2\/posts\/16639\/revisions"}],"wp:attachment":[{"href":"https:\/\/goodsandservicetax.in\/GST\/index.php?rest_route=%2Fwp%2Fv2%2Fmedia&parent=16639"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/goodsandservicetax.in\/GST\/index.php?rest_route=%2Fwp%2Fv2%2Fcategories&post=16639"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/goodsandservicetax.in\/GST\/index.php?rest_route=%2Fwp%2Fv2%2Ftags&post=16639"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}
For full text:-Visit the Source <\/a><\/p>\n
\n(E) Writ of certiorari or any other appropriate writ, order or direction to quash the clarification dated 09.01.2018 enclosed in Annexure-C issued by the respondent No.3 as ultra vires and beyond the provisions of CGST Act, 2017 and as being violative of Articles 14 and 19(1)(g) of the Constitution of India and are therefore illegal, ultra vires and unenforceable.
\n2. Learned AGA appearing for the revenue has raised the preliminary objection regarding the maintainability of the writ petition. It was contended that no cause of action has emerged to the petitioner to challenge the vires of the statutory provisions as well as the Notification and Circular issued by the competent authorities. This court cannot adjudicate upon the correctness and legality of the Notification and Circular as well as the provisions impugned, in vacuum.
\n3. Learned AGA placed reliance on the judgment of the Hon'ble Apex Court reported in (2004)6 SCC 2<\/p>\n
For full text:-Visit the Source <\/a><\/p>\n
\n7. To answer the preliminary objections raised, it is apt to collate the legal propositions holding the field with reference to the judgments cited by the learned counsel for the parties. The Hon'ble Apex Court in the case of Kusum Ingots (supra), has observed that passing of a legislation by itself does not confer any such right to file the writ petition unless a cause of action arises therefor. However, it is observed that a distinction between a legislation and executive action should be borne in mind while determining the said question. A writ Court would not determine a constitutional question in a vacuum.
\n8. In Ambica Industries Vs Commissioner of Central Excise reported in (2007) 6 SCC 769 = 2007 (5) TMI 21 – SUPREME COURT OF INDIA, the Hon'ble Apex Court considering the case of Nasiruddin (Nasiruddin Vs. State Transport <\/p>\n
For full text:-Visit the Source <\/a><\/p>\n
\n11. In Torrent Power Limited Vs. Union of India reported in 2019-TIOL-15-HC-AHM-GST = 2019 (1) TMI 1092 – GUJARAT HIGH COURT on which much emphasis was placed by the learned counsel for the petitioner, the Hon'ble High Court of Gujarat was considering the challenge made to summons issued based upon clarificatory circular, the subject matter of challenge in the writ petition. The contention that the challenge made to the summons is not maintainable was negated for the reason that the summ<\/p>\n
For full text:-Visit the Source <\/a><\/p>\n
\n13. In Kshama Sahakari Avas Samiti Limited Vs. State of U.P. 2006 SCC Online All 1443 = 2006 (8) TMI 663 – ALLAHABAD HIGH COURT, the High Court of Allahabad dealing with the preliminary objection raised that the petition is premature and is not maintainable with respect to the challenge to the Notification issued under Section 4 of the Act, 1994, observed that even though the Notification issued under Section 4 of the Act is merely a proposal and is not a conclusive proof of acquisition, the Court may exercise its extra ordinary jurisdiction under Article 226 of the Constitution of India to quash the same if the Notification is per se illegal. The said judgment dealing with the provisions of the Land Acquisition Act, where the lands and the respective land owners are identified as aforesaid, would not be of any assistance to the petitioner while dealing with the taxing statute.
\n14. In the case of Star India Private Limited Vs. Department of Industrial Policy <\/p>\n
For full text:-Visit the Source <\/a><\/p>\n
\nFor the aforesaid discussion and observations, this Court is of the considered view that the writ petitions at this stage are premature and deserve to be dismissed as not maintainable. Ordered accordingly.'
Case laws, Deci<\/p>\n
For full text:-Visit the Source <\/a><\/p>\n