Constitution of GST appellate tribunal unconstitutional: Madras HC

The court observed that there should be primacy for judicial members and technical members cannot exceed the number of judicial members, according to sources

A division bench of the Madras High Court on Friday held that the conditions related to the constitution of the Goods and Services Tax (GST) Appellate Tribunal as unconstitutional. 

The Bench, comprising Justice S Manikumar and Justice Subramonium Prasad, observed that there should be primacy for judicial members and technical members cannot exceed the number of judicial members, according to legal sources.

According to Section 109 of Chapter XVIII of the CGST Act, 2017, the tribunal has to have two technical members – one for the Centre and one for the state GST  – and one judicial member in every bench of the tribunal.

Confirming the order, counsel for one of the petitioners, the Revenue Bar Association’s (RBA’s) Rahul Unnikrishnan, said the government, if it is not going for an appeal, may have to bring in an amendment to the CGST Act, especially Section 109. 

“The section, as it exists, provided for two technical members and one judicial member in every Bench of the tribunal. This has been held as unconstitutional,” he said. 

The petitioners also challenged Section 110 of the Act, which details the qualification, appointment, conditions of service of the president and members of the tribunal. 

The contention was that the section did not give an option to the advocates to be eligible for the post of judicial member. In the courts and tribunals, advocates are necessarily considered for the post of judicial member, with certain experience criteria, they argued.

The Bench said advocates do not have the fundamental right to be considered to be appointed judicial members in the tribunal.