2019 (2) TMI 300 - KERALA HIGH COURT

Constitutionality of section 174 of KGST Act and 101st Constitutional Amendment - Jurisdiction - power to enact section 174 of KGST Act - amendment to Entry 54 of List II - the assertion mainly comes from 101st Constitutional Amendment that is the attenuated or modified Entry 54 of List-II, the State List - Does the State have the legislative competence to enact section 174 and save the past taxation events-comprising levy, and recovery-when Entry 54, List II, which is the field of legislation empowering the State, stood omitted permanently with effect from 16.09.2017? - repeal of statutes - transitional provisions.

Held that:- With the Entry 54 of List II unavailable for the State to incorporate Section 174 of KSGST Act, the whole saving mechanism vis-a-vis transactions before 16-09-2017 crumbles - it is fallacy on the petitioner's part to content that the State lacks the legislative power to enact Section 174 of KSGST Act. Article 246A is the special provision on the GST. It empowers both the Union and the State, for the first time, to have simultaneous -not concurrent- powers to legislate on certain items. Indeed concurrency yields to the Doctrine of repugnancy, but simultaneous legislative power does not. That is, both the Legislatures, say one from the Union and other from the State, co-exist-operate in the same sphere subject to other constitutional safeguards.

The petitioner's plea is rejected that the State lacks the vires to graft Section 174 into KSGST Act, 2017 - petition dismissed.