IN THE HIGH COURT OF JUDICATURE AT MADRAS (Special Original Jurisdiction) W.P. No. of 2018

Transcription

1 MEMORANDUM OF WRIT PETITION (Under Article 226 of the Constitution of India) IN THE HIGH COURT OF JUDICATURE AT MADRAS (Special Original Jurisdiction) W.P. No. of 2018 Revenue Bar Association New No. 115 (First Floor) Luz Church Road, Mylapore Chennai Represented by its Secretary... Petitioner/Petitioner Vs. 1. Union of India, Represented by its Secretary Ministry of Finance (Department of Revenue) No.137, North Block, New Delhi Union of India, Represented by its Secretary Ministry of Law & Justice 4th Floor, A, Wing, Rajendra Prasad Road, Shastri Bhavan, New Delhi The Goods and Services Tax Council Represented by its Secretary Office of the GST Council Secretariat, 5th Floor, Tower II, Jeevan Bharti Building, Janpath Road, Connaught Place, New Delhi The State of Tamil Nadu Represented by its Chief Secretary St. George Fort, Chennai Respondents/Respondents

2 2 1. I am the Secretary of the Petitioner association herein and as such I am well acquainted with facts of the case. 2. It is submitted that the present writ petitions are being filed under Article 226 of the Constitution of India seeking a writ of declaration to declare: a) Chapter XVII of the Central Goods and Services Tax Act, 2017, more particularly, sections 96 and 99 of the Central Goods and Services Tax Act, 2017 relating to constitution of Authority for Advance Rulings and Appellate Authority for Advance Rulings as void, defective and unconstitutional, being violative of Articles 14, 21, 50 of the Constitution of India, and doctrines of separation of powers and independence of judiciary, which are parts of the basic structure of the Constitution and further contrary to the principles laid down by the Hon ble Supreme Court in Union of India v. R. Gandhi (2010) 11 SCC 1; b) Chapter XVII of the Tamil Nadu Goods and Services Tax Act, 2017, more particularly, sections 96 and 99 of the Tamil Nadu Goods and Services Tax Act, 2017 relating to constitution of Authority for Advance Rulings and Appellate Authority for Advance Rulings as void, defective and unconstitutional, being violative of Articles 14, 21 and 50 of the Constitution of India, and doctrines of separation of powers and independence of judiciary, which are parts of the basic structure of the Constitution and further contrary to the principles laid down by the Hon ble Supreme Court in Union of India v. R. Gandhi (2010) 11 SCC 1; Page No. 2

3 3 c) Notification G.O. (Ms). No. 145 dated dealing with the constitution of the Tamil Nadu Authority for Advance Ruling as void, defective and unconstitutional, being violative of Articles 14, 21 and 50 of the Constitution of India, and doctrines of separation of powers and independence of judiciary, which are parts of the basic structure of the Constitution and further contrary to the principles laid down by the Hon ble Supreme Court in Union of India v. R. Gandhi (2010) 11 SCC 1; and d) Notification G.O. (Ms). No. 171 dated dealing with the constitution of the Tamil Nadu Appellate Authority for Advance Ruling as void, defective and unconstitutional, being violative of Articles 14, 21 and 50 of the Constitution of India, and doctrines of separation of powers and independence of judiciary, which are parts of the basic structure of the Constitution and further contrary to the principles laid down by the Hon ble Supreme Court in Union of India v. R. Gandhi (2010) 11 SCC The petitioner herein is a society formed in the year 1963 and registered under the Societies Registration Act, This Petition is being preferred in a representative capacity as advocates, practicing across various Courts, Tribunals and other quasi-judicial fora and as such, it has the locus standi to maintain this writ petition. The Petitioner is aggrieved by sections 96 and 99 of both Central Goods and Services Tax Act, 2017 and Tamil Nadu Goods and Services Tax Act, 2017 ( impugned provisions ), and Notification Nos. G.O. (Ms). No. 145 dated and G.O. (Ms). No. 171 dated ( impugned notifications ) and Page No. 3

4 4 their adverse impact on independence and proper administration of tribunals and access to justice. 4. The 1st respondent is the Union of India, represented through the Ministry of Finance, and is responsible for issuance of the Central Goods and Services Tax Act, The 2nd respondent is also Union of India represented through the Ministry of Law & Justice. As per various orders of the Supreme Court over the years, all tribunals created pursuant to central and state legislations ought to function under the 2nd respondent Ministry. 6. The 3rd respondent is the Goods and Services Tax Council represented through its Secretary, and is the governing body for GST laws in India. 7. The 4th Respondent is the State of Tamil Nadu represented through its Chief Secretary, and is responsible for the issuance of Tamil Nadu Goods and Services Tax Act, 2017, and the impugned notifications. 8. Chapter XVII of the Central Goods and Services Tax Act, 2017 ( CGST Act ) and Chapter XVII of the Tamil Nadu Goods and Services Tax Act, 2017 ( TNGST Act ) deal with constitution of Authority for Advance Rulings ( AAR ) and Appellate Authority for Advance Rulings ( AAAR ). An applicant who is an existing registered person or who is desirous of obtaining registration under the GST laws may make an application for an advance ruling in respect of: a. Classification of any goods or services or both; b. Applicability of a notification; c. Determination of time and value of supply of goods or services or both; Page No. 4

5 5 d. Admissibility of input tax credit of tax paid or deemed to have been paid; e. Determination of the liability to pay tax on any goods or services or both; f. Whether applicant is required to be registered; and g. Whether any particular thing done by the applicant with respect to any goods or services or both amounts to or results in a supply of goods or services or both, within the meaning of that term. 9. Further, it is pertinent to note that, under section 103 of the CGST Act, the advance ruling sought for by the applicant is binding on the applicant and the concerned officer/jurisdictional officer in respect of the applicant. This advance ruling shall be binding unless the law, facts, or circumstances supporting the original advance ruling have changed. 10. Before outlining the constitution of AAR and AAAR under the CGST and the TNGST Acts, it is imperative to study the constitution of AARs in the pre-gst era. 11. Under s. 23A(e) of the Central Excise Act, 1944, AAR was defined to be the authority as defined in s. 28E(e) of the Customs Act, Similar definition was also contained in s. 96A(d) of the Finance Act, 1994, which dealt with laws on service tax in India. Thus, Chapter VB of the Customs Act, 1962 (s. 28E to s. 28M) was an umbrella chapter that dealt with Authority for Advance Rulings (Central Excise, Customs and Service Tax). Under s. 28F(2) of the Customs Act, 1962, the authority consisted of- (a) chairperson, who is a retired Judge of the Supreme Court; (b) an officer of the Indian Customs and Central Excise Service Page No. 5

6 6 who is qualified to be a Member of the Board; and (c) an officer of the Indian Legal Service who is, or is qualified to be, an Additional Secretary to the Government of India. 12. Similarly, as far as direct tax is concerned, under s. 245-O(2) of the Income-tax Act, 1961, the AAR shall consist of a Chairman and such number of Vice-chairmen, revenue members and law members as the Central Government may, by notification, appoint. Here, a person shall be qualified for appointment as Chairman, who has been a Judge of the Supreme Court or the Chief Justice of a High Court or for at least seven years a Judge of a High Court. 13. Under the GST laws, we now have an AAR and an AAAR in each state. Section 96 of the CGST Act states that the Authority for Advance Ruling constituted under the provisions of a State Goods and Services Tax Act or Union Territory Goods and Services Tax Act shall be deemed to be the Authority for advance ruling in respect of that State or Union Territory. Similarly, s. 99 of the CGST Act states that the Appellate Authority for Advance Ruling constituted under the provisions of a State Goods and Services Tax Act or Union Territory Goods and Services Tax Act shall be deemed to be the Appellate Authority in respect of that State or Union Territory. 14. Following ss. 96 and 99 of the CGST Act, ss. 96 and 99 of the TNGST constitutes AAR and AAAR in Tamil Nadu. Under s. 96(2) of the TNGST Act, the AAR consists of (a) one member from amongst the officers of Central Tax; and (b) one member from amongst the officers of Page No. 6

7 7 State tax, to be appointed by the Central Government and the State Government respectively. 15. Similarly, s. 99 of the TNGST Act constitutes AAAR for Tamil Nadu which consist of the Chief Commissioner of Central Tax as designated by the Board, and the Commissioner of State Tax. 16. The State of Tamil Nadu, vide G.O. (Ms) No. 145 dated and G.O. (Ms) No. 171 dated , constituted AAR and AAAR respectively, for the State of Tamil Nadu. 17. In Columbia Sportswear Company v. Director of Income Tax (2012) 11 SCC 224,233, a Full-Bench of the Supreme Court, while discussing the nature of function of AAR under the Income-tax Act, 1961, held that it is a body exercising judicial power and is thus a tribunal. 18. However, it is pertinent to note that under ss. 96 and 99 of the TNGST Act, the constitution of AAR and AAAR do not contain any judicial members. All the members are from the State/Central Tax departments. Whereas, the Supreme Court, in Union of India v R. Gandhi, (2010) 11 SCC 1, categorically enunciated that a Bench of National Company Law Tribunal / National Company Law Appellate Tribunal should consist of one Judicial Member and one Technical Member or the Judicial Member should be equal or in majority in compare to the Technical Member, and in no circumstances the number of Technical Member should be in majority compared to Judicial Members. The Technical member is for technical expertise support and should not assume judicial powers and cannot be allowed to hear a case solely in absence of a Judicial Member. Page No. 7

8 8 19. As seen already, the coram of the AAR and the AAAR are members from the State/Central Tax departments which make it coram non judice. 20. It is submitted that the impugned provisions and the impugned notificationss suffer from severe infirmities with regards to doctrine of separation of powers and further, curtails the independence of the judiciary that forms part of the basic structure of the Constitution. The impugned provisions further run contrary to the directions which ought to be followed as guidelines regarding the structuring and organisation of Tribunals in India as was laid down by the Hon ble Supreme Court in Union of India v. R. Gandhi (supra) and Madras Bar Association v. Union of India (2014) 10 SCC The Supreme Court, in R. Gandhi (supra), had laid down the following directions and mandated that the Government of India follow the directions as guidelines while constituting the NCLT and NCLAT: a. Only Judges and Advocates can be considered for appointment as Judicial Members of the Tribunal. Only High Court Judges, or Judges who have served in the rank of a District Judge for at least five years or a person who has practiced as a Lawyer for ten years can be considered for appointment as a Judicial Member; b. Persons who have held a Group A or equivalent post under the Central or State Government with experience in the Indian Company Law Service (Legal Branch) and Indian Legal Service (Grade-1) cannot be considered for appointment as judicial members. The expertise in Company Law service or Indian Legal Page No. 8

9 9 service will at best enable them to be considered for appointment as technical members; c. As the NCLT takes over the functions of High Court, the members should as nearly as possible have the same position and status as High Court Judges. This can be achieved, not by giving the salary and perks of a High Court Judge to the members, but by ensuring that persons who are as nearly equal in rank, experience or competence to High Court Judges are appointed as members. Therefore, only officers who are holding the ranks of Secretaries or Additional Secretaries alone can be considered for appointment as Technical members. d. A `Technical Member' presupposes an experience in the field to which the Tribunal relates. e. Instead of a five-member Selection Committee with Chief Justice of India (or his nominee) as Chairperson and two Secretaries from the Ministry of Finance and Company Affairs and the Secretary in the Ministry of Labour and Secretary in the Ministry of Law and Justice as members, the Selection Committee should broadly be on the following lines: i. Chief Justice of India or his nominee - Chairperson (with a casting vote); ii. A senior Judge of the Supreme Court or Chief Justice of High Court - Member; iii. Secretary in the Ministry of Finance and Company Affairs - Member; and Page No. 9

10 10 iv. Secretary in the Ministry of Law and Justice Member f. The term of office of three years shall be changed to a term of seven or five years subject to eligibility for appointment for one more term. This is because considerable time is required to achieve expertise in the concerned field. A term of three years is very short and by the time the members achieve the required knowledge, expertise and efficiency, one term will be over. Further the said term of three years with the retirement age of 65 years is perceived as having been tailor-made for persons who have retired or shortly to retire and encourages these Tribunals to be treated as postretirement havens. If these Tribunals are to function effectively and efficiently they should be able to attract younger members who will have a reasonable period of service. g. Any person appointed as members should be prepared to totally disassociate himself from the Executive. h. To maintain independence and security in service, suspension of the President/Chairman or member of a Tribunal can be only with the concurrence of the Chief Justice of India. i. The administrative support for all Tribunals should be from the Ministry of Law & Justice. Neither the Tribunals nor its members shall seek or be provided with facilities from the respective sponsoring or parent Ministries or concerned Department. j. Two-Member Benches of the Tribunal should always have a judicial member. Whenever any larger or special benches are Page No. 10

11 11 constituted, the number of Technical Members shall not exceed the Judicial Members. 22. The above guidelines were given by the Hon ble Supreme Court based on the following principles as enumerated in para 44 of the said judgment : i. A legislature can enact a law transferring the jurisdiction exercised by courts in regard to any specified subject (other than those which are vested in courts by express provisions of the Constitution) to any tribunal. ii. All courts are tribunals. Any tribunal to which any existing jurisdiction of courts is transferred should also be a Judicial Tribunal. This means that such Tribunal 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 which was till then dealing with such matters and the members of the Tribunal should have the independence and security of tenure associated with Judicial Tribunals. iii. Whenever there is need for `Tribunals', there is no presumption that there should be technical members in the Tribunals. When any jurisdiction is shifted from courts to Tribunals, on the ground of pendency and delay in courts, and the jurisdiction so transferred does not involve any technical aspects requiring the assistance of experts, the Tribunals should normally have only judicial members. Only where the exercise of jurisdiction involves inquiry and decisions into technical or special aspects, Page No. 11

12 12 where presence of technical members will be useful and necessary, Tribunals should have technical members. Indiscriminate appointment of technical members in all Tribunals will dilute and adversely affect the independence of the Judiciary. iv. The Legislature can re-organize the jurisdictions of Judicial Tribunals. For example, it can provide that a specified category of cases tried by a higher court can be tried by a lower court or vice versa (A standard example is the variation of pecuniary limits of courts). Similarly, while constituting Tribunals, the Legislature can prescribe the qualifications/eligibility criteria. The same is however subject to Judicial Review. If the court in exercise of judicial review is of the view that such tribunalisation would adversely affect the independence of judiciary or the standards of judiciary, the court may interfere to preserve the independence and standards of judiciary. Such an exercise will be part of the checks and balances measures to maintain the separation of powers and to prevent any encroachment, intentional or unintentional, by either the legislature or by the executive. 23. It is submitted that even though the Hon ble Supreme Court has prescribed various guidelines in R. Gandhi (supra) with regard to the constitution of the NCLT and NCLAT, the same stands applicable to all the tribunals in India, including AARs. Page No. 12

13 The Petitioner association is concerned about the independence of judicial tribunals and seeks to protect the same and hence, is filing the present writ petition under Article 226 of the Constitution of India as public interest litigation. 25. It is further submitted that the Petitioner has not filed any other petition seeking similar relief before any High Court or this Court. The petitioner has directly filed a petition under Article 226 of the Constitution as the impugned provisions and the impugned notifications are arbitrary and violative of Articles 14 and 50. The right to life under Article 21 includes the right to justice by an independent judiciary and by a Tribunal which is free from executive or political influence. The Association is vitally concerned with the administration of justice and maintenance of rule of law which has been held to be part of the basic structure of the Constitution. 26. The glaring infirmities and consequences to the independent judicial administration of the various tribunals and appellate tribunals has compelled the present Petitioner association to file the present writ petition under Article 226 of the Constitution of India on the following amongst other grounds: Page No. 13 G R O U N D S A. The impugned provisions violate the principles of separation of powers which is not only part of basic structure but also an elementary component of the rule of law. That in Kesavananda Bharati v. State of Kerala, AIR 1973 SC 1461 and in Minerva Mills Ltd. v. Union of India, (1980) 3 SCC 625, larger benches of the Hon ble Supreme

14 14 Court have held, inter alia, that an independent judiciary and it's power of judicial review are among the basic features of the Constitution. B. A Constitution Bench in S. P. Sampath Kumar v. Union of India, (1987) 1 SCC 124 at para 7, speaking through Bhagwati, CJ, has held that, It can no longer be disputed that total insulation of the judiciary from all forms of interference from the co-ordinate branches of the Government is a basic essential feature of the Constitution, the same independence from possibility of Executive pressure or influence must also be ensured to the Chairman, vice Chairman and Members of the Administrative Tribunals... The Constitution makers have made anxious provision to secure total independence of the judiciary from executive pressure or influence. Page No. 14 C. That the constitutional guarantee of an independent judicial branch and the constitutional scheme of separation of powers can be easily and seriously undermined, if the legislatures were to entrust the Tribunals with Members not being Members of the Judicial service of the State, as they are not entitled to protection similar to the constitutional protection afforded to the Courts. D. The AAR and the AAAR act in judicial capacity, and they perform an act or make a decision that is binding and collusive and impose obligation upon or affects the rights of the individuals. E. Following the decision of the Supreme Court in Columbia Sportswear, the AAR and the AAAR under the CGST Act and the TNSGT Act are tribunals. F. That if the constitutional Scheme and intent are to be preserved, it must be held that the total insulation of the judiciary referred to in the

15 15 case of S. P. Sampath Kumar v. Union of India, (1987) 1 SCC 124 is not just for the judiciary comprising of Judges appointed to the regular Courts. The judiciary in this context must be understood as taking within its fold, all courts and Tribunals and other adjudicatory bodies, whatever be the label assigned to them. The independence and impartiality which are essential for the proper exercise of the judicial power, are to be secured not only for the Courts but also for Tribunals and their members, who, though they do not belong to the Judicial Service are entrusted with judicial powers. Any other view would effectively eviscerate the constitutional guarantee of an independent Judicial Branch. G. It is submitted that the safeguards which ensure independence and impartiality are not for promoting personal prestige of the functionary but for preserving and protecting the rights of the citizens and others who are subject to the jurisdiction of the Tribunal, and for ensuring that such Tribunals will be able to command the confidence of the public. H. It is further submitted that several safeguards to protect the independence of the judiciary mentioned in R. Gandhi (supra) have not been followed. I. The Hon ble Supreme Court had laid down that when judicial powers are transferred from the Courts to Tribunals, the standard of the Tribunals should approximately be the same as that of the Courts. Page No. 15

16 16 J. Article 50 of the Constitution is part of the basic structure of the Constitution, and is one example of a specific constitutional provision embodying the basic features of separation of powers and rule of law. 27. The petitioner craves the leave of this Hon ble Court to raise additional grounds at the time of hearing. 28. The petitioner has not filed any other writ petition or any other legal proceedings seeking the reliefs claimed in the present writ petition. The petitioner has no alternative or efficacious remedy except to invoke the writ jurisdiction of this Hon ble Court under Article 226 of the Constitution of India. The petitioner is self-funded in the filing and the conduct of this writ petition. 29. The petitioner has a prima facie case as the effect of the impugned provisions and the impugned notifications are against the very essence of the principles of judicial independence and separation of powers that not only does the Central Government and the State Government hold primacy in the appointment of members of AAR and AAAR 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. 30. It is further submitted that irreparable hardship will be caused to the vast number of litigants if the members of the Appellate Tribunals, appointed in accordance to the impugned provisions, which have been framed in the most constitutionally improper manner, are permitted to adjudicate on Page No. 16

17 17 issues involving complicated questions of law and worth crores in terms of financial stakes. 31. The Petitioner therefore submits that the operation of the impugned provisions and the impugned notifications must be immediately stayed failing which irreparable loss, grave prejudice and irreversible hardship would be caused to all the litigants who are before the AAR and the AAAR. 32. It is therefore prayed that this Hon ble Court may be pleased to pass an order of stay of the operation of sections 96 and 99 of the Central Goods and Services Tax Act, 2017 pending disposal of the present writ petition and pass such further orders as this Hon ble Court may deem fit and necessary in the facts and circumstances of the case and thus render justice. 33. It is therefore prayed that this Hon ble Court may be pleased to pass an order of stay of the operation of sections 96 and 99 of the Tamil Nadu Goods and Services Tax Act, 2017 pending disposal of the present writ petition and pass such further orders as this Hon ble Court may deem fit and necessary in the facts and circumstances of the case and thus render justice. 34. It is therefore prayed that this Hon ble Court may be pleased to pass an order of stay of the operation of Notification G.O. (Ms.). No. 145 dated pending disposal of the present writ petition and pass such further orders as this Hon ble Court may deem fit and necessary in the facts and circumstances of the case and thus render justice. Page No. 17

18 It is therefore prayed that this Hon ble Court may be pleased to pass an order of stay of the operation of Notification G.O. (Ms.). No. 171 dated pending disposal of the present writ petition and pass such further orders as this Hon ble Court may deem fit and necessary in the facts and circumstances of the case and thus render justice. 36. It is therefore prayed that this Hon ble Court may be pleased to issue any writ, order or direction more particularly in the nature of a Writ of Declaration to declare Chapter XVII of the Central Goods and Services Tax Act, 2017, more particularly, sections 96 and 99 of the Central Goods and Services Tax Act, 2017 relating to constitution of Authority for Advance Rulings and Appellate Authority for Advance Rulings as void, defective and unconstitutional, being violative of Articles 14, 21, 50 of the Constitution of India, and doctrines of separation of powers and independence of judiciary, which are parts of the basic structure of the Constitution and further contrary to the principles laid down by the Hon ble Supreme Court in Union of India v. R. Gandhi (2010) 11 SCC 1 and pass such further or other orders as this Hon ble Court may deem fit and necessary in the facts and circumstances of the case and thus render justice. 37. It is therefore prayed that this Hon ble Court may be pleased to issue any writ, order or direction more particularly in the nature of a Writ of Declaration to declare Chapter XVII of the Tamil Nadu Goods and Page No. 18

19 19 Services Tax Act, 2017, more particularly, sections 96 and 99 of the Tamil Nadu Goods and Services Tax Act, 2017 relating to constitution of Authority for Advance Rulings and Appellate Authority for Advance Rulings as void, defective and unconstitutional, being violative of Articles 14, 21 and 50 of the Constitution of India, and doctrines of separation of powers and independence of judiciary, which are parts of the basic structure of the Constitution and further contrary to the principles laid down by the Hon ble Supreme Court in Union of India v. R. Gandhi (2010) 11 SCC 1 and pass such further or other orders as this Hon ble Court may deem fit and necessary in the facts and circumstances of the case and thus render justice. 38. It is therefore prayed that this Hon ble Court may be pleased to issue any writ, order or direction more particularly in the nature of a Writ of Declaration to declare Notification G.O. (Ms). No. 145 dated dealing with the constitution of the Tamil Nadu Authority for Advance Ruling as void, defective and unconstitutional, being violative of Articles 14, 21 and 50 of the Constitution of India, and doctrines of separation of powers and independence of judiciary, which are parts of the basic structure of the Constitution and further contrary to the principles laid down by the Hon ble Supreme Court in Union of India v. R. Gandhi (2010) 11 SCC 1 and pass such further or other orders as this Hon ble Court may deem fit and necessary in the facts and circumstances of the case and thus render justice. 39. It is therefore prayed that this Hon ble Court may be pleased to issue any writ, order or direction more particularly in the nature of a Writ of Page No. 19

20 Powered by TCPDF ( df.o rg) BAR & BENCH ( 20 Declaration to declare Notification G.O. (Ms). No. 171 dated dealing with the constitution of the Tamil Nadu Appellate Authority for Advance Ruling as void, defective and unconstitutional, being violative of Articles 14, 21 and 50 of the Constitution of India, and doctrines of separation of powers and independence of judiciary, which are parts of the basic structure of the Constitution and further contrary to the principles laid down by the Hon ble Supreme Court in Union of India v. R. Gandhi (2010) 11 SCC 1 and pass such further or other orders as this Hon ble Court may deem fit and necessary in the facts and circumstances of the case and thus render justice. Solemnly affirmed at Chennai ] Before Me, On this the 8th day of September ] 2018 and signed his name in ] My presence ] Advocate, Chennai Page No. 20