Exclusion Of Advocates In GST Appellate Tribunals: Supreme Court Tags The Matter With Petition For Constitution Of GSTATs

"List these petitions along with Writ Petition (Civil) No 775 of 2021," bench of Justices Abdul Nazeer and Aniruddha Bose noted in its order.

The Top Court on September 11, 2021 had issued notice in the SLP.

When the matter was called for hearing, Justice Abdul Nazeer, presiding Judge of the bench while referring to the cases related to the tribunal pending before the special bench led by Chief Justice of India NV Ramana, asked Senior Advocate Arvind Datar representing the Revenue Bar Association to wait till the conclusion of battle.

"Mr Datar, You'll have to wait till the battle is concluded," Justice Abdul Nazeer remarked while expressing his inclination to tag the SLP with the matters pending before the Special Bench.

Replying to Justice Nazeer's remarks, Senior Advocate Arvind Datar attempted to explain the difference between the SLP filed challenging Madras High Court's decision and the matter pending before the special bench; he submitted that the present SLP in particular assailed High Court's order of declaring certain provisions regarding the constitution of GST Appellate Tribunal as unconstitutional and excluding lawyers from the zone of consideration as Judicial Members in the GSAT.

"All those points that were raised in that petition was not dealt with by Madras High Court & that's why I am in appeal. 3 years, 5 years, I'm not worried. The larger question is, can you exclude advocates from being appointed as judicial members of GST Appellate Tribunal . If Advocates can qualify for being appointed as Judicial Member of ITAT, CESTAT Tribunal and other tribunals, how can they not be eligible for GST Appellate Tribunal? Many advocates have become members of Tribunals," Senior Counsel further submitted.

Upon Senior Counsel's submission, Justice Abdul Nazeer in a lighter vein orally remarked, "An advocate can be elevated directly to the Supreme Court but they are not eligible to be appointed as members of GST Appellate Tribunal."

Appearing for the Union, ASG SV Raju had pressed for tagging the present SLP with the writ filed by Advocate Amit Sahni.

"There is one Amit Sahni matter. This will have to be considered along with the others," ASG had submitted.

Pointing out the grounds on which the SLP was filed, Advocate Amit Anand Tiwari appearing for the State of Tamil Nadu submitted that, "Other than lawyers not being given an opportunity, all the other aspects have not been highlighted. In all fairness to the Hon'ble High Court, other grounds must be rejected."

Case Before Madras High Court

The division bench of Justice S. Manikumar and Justice Subramonium Prasad on September 20, 2019 had struck down Section 110(1)(b)(iii) of the CGST Act which stated 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 and Section 109(3) and 109(9) of the CGST Act, 2017, which prescribed that the tribunal shall consist of one Judicial Member, one Technical Member (Centre) and one Technical Member (State).

The bench while disposing a batch of petitions challenging the constitution of GSTAT had also rejected the arguments that sections 109 and 110 of the CGST Act, 2017 and TNGST Act, 2017 were ultra vires in so far as they excluded lawyers from the scope and view for consideration for members of the tribunal.

However, it had recommended the Parliament to consider amending the sections for including lawyers eligible to be appointed as Judicial Members to the Appellate Tribunal in view of the issues which were likely to arise for adjudication under the CGST Act and in order to maintain uniformity in various statutes.

Case Title: Revenue Bar Association v Union of India

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