2021 (12) TMI 612 - HC - GST

Constitutional Validity of clause (iv) of the Notification No. 16 / 2021 Central Tax (Rate) dated 18th November, 2021 and clause 1(i) and clause 2(i) of Notification No. 17 / 2021 Central Tax (Rate) dated 18th November, 2021 - HELD THAT - Issue notice. Ms.Supriya Juneja, Advocate accepts notice on behalf of respondent no.2. She states that Mr.Aditya Singhla, Advocate, who is to argue the matter, is in personal difficulty. She also prays for some time to obtain instructions. In the interest of justice, re-notify on 21st December, 2021.

Summary

Issues Involved:
Challenge to the validity of certain clauses of Notifications under Central Tax (Rate) as ultra vires the Constitution of India, alleging violation of Articles 14, 19(1)(g), and 21.

Analysis:
The present writ petition challenges the validity of clause (iv) of Notification No. 16/2021 and clause 1(i) and clause 2(i) of Notification No. 17/2021 under Central Tax (Rate), dated 18th November, 2021. The petitioner contends that these clauses are ultra vires the Constitution of India as they are unreasonable, arbitrary, and violate Articles 14, 19(1)(g), and 21. The impugned notifications amend the parent notifications to levy GST on the supply of transportation of passenger service through an electronic commerce operator, specifically provided by auto rickshaws. The amendments are set to be effective from 1st January, 2022. Under the impugned notifications, if an auto-driver registers with an e-commerce operator and provides passenger transport services to passengers identified through the platform, GST at specified rates will be applicable on the fare collected, while offline auto rides remain exempt. The petitioner's senior counsel argues that these notifications create an unreasonable differentiation in tax treatment between passenger transport services facilitated by e-commerce platforms and those provided offline, thereby violating the equality principle enshrined in Article 14 of the Constitution.

The petitioner's counsel contends that the impugned notifications fail to satisfy the test of reasonable classification as mandated by Article 14 of the Constitution. It is argued that no justifiable distinction can be made in the tax treatment of passenger transport services based on whether they are rendered through e-commerce platforms or offline means. The petitioner asserts that such differential treatment is arbitrary and lacks a rational nexus with the objective of the tax regime. The challenge is primarily focused on the constitutionality of the classification created by the notifications and the alleged violation of the right to equality under Article 14.

In response to the petition, Ms. Supriya Juneja, representing respondent no. 2, accepts notice and informs the court that the advocate who will argue the matter is facing personal difficulties. She requests additional time to obtain instructions. Considering the circumstances and in the interest of justice, the court decides to re-notify the matter for 21st December, 2021. The court's decision to provide an opportunity for the respondent to prepare and present their case demonstrates adherence to procedural fairness and the principles of natural justice.

In conclusion, the judgment reflects a crucial constitutional challenge to the validity of specific clauses in notifications related to the levy of GST on passenger transport services provided through e-commerce operators by auto rickshaws. The petition raises significant concerns regarding the reasonableness and constitutionality of the differential tax treatment imposed by the impugned notifications, emphasizing the principles of equality and non-arbitrariness under the Indian Constitution. The court's decision to issue notice and grant additional time to the respondent for preparation underscores the importance of ensuring a fair and comprehensive adjudication of the legal issues raised in the petition.