2019 (8) TMI 1087 - HC - GST

Scope of proceedings - judicial review - HELD THAT - At present, learned Standing Counsel states that in absence of the Tribunal having been constituted by the Union, the assessee as well as the revenue authorities are compelled to approach this Court by filing such writ petition against the order of the first appellate authority - Learned Standing Counsel is permitted to implead Union of India as respondent no.2 in the present proceedings, during the course of the day. Let a notice copy of this writ petition be served on learned A.S.G.I., within next 48 hours, who may file his response specifically on the issue why the Tribunal has yet not been constituted.

Summary

Issues:
1. Maintainability of the writ petition due to the absence of the Tribunal being constituted by the Union of India.
2. Impleadment of Union of India as respondent no.2 in the proceedings.
3. Delay in constituting the Tribunal affecting the assessee's right to appeal on law and fact.
4. Request for an affidavit from the Additional Solicitor General of India on the delay in constituting the Tribunal.
5. Connect with another related Writ Tax case after one month.
6. Filing of an affidavit by the Standing Counsel to provide the total number of first appeals decided by the first appellate authority in the State of U.P. since the enforcement of the GST regime.

Analysis:
1. The counsel for the assessee raised a preliminary objection regarding the maintainability of the writ petition due to the non-constitution of the Tribunal by the Union of India. This issue questions the accessibility of the judicial remedy through writ petitions against the orders of the first appellate authority in the absence of the Tribunal.

2. To address the absence of the Tribunal, the learned Standing Counsel was permitted to implead the Union of India as respondent no.2 in the ongoing proceedings. This step aims to involve the Union of India in the legal process and potentially expedite the constitution of the Tribunal to facilitate proper legal recourse for both the assessee and revenue authorities.

3. The delay in constituting the Tribunal has significant implications on the assessee's rights to appeal on law and fact. The court highlighted the necessity of the Tribunal's establishment to ensure the proper functioning of the legal system, allowing the assessee the full extent of legal remedies available under the law.

4. An affidavit was requested from the Additional Solicitor General of India to provide insights into the reasons behind the delay in constituting the Tribunal. This affidavit is crucial for understanding the challenges faced by the legal system and the impact of the delay on the judicial review process.

5. The case is scheduled to be connected with another related Writ Tax case after a month, indicating a coordinated approach to handling similar legal matters and ensuring consistency in judicial proceedings.

6. Additionally, the Standing Counsel was directed to file an affidavit detailing the total number of first appeals decided by the first appellate authority in the State of U.P. since the enforcement of the GST regime. This information is essential for assessing the workload and efficiency of the appellate authority in the context of the GST framework.