2020 (1) TMI 706 - HC - GST

Proposal for constitution of State bench of GST Appellate Tribunal at Lucknow and 20 area Benches at 16 different locations - Section 109 of the U.P. Goods and Service Tax Act, 2017 - HELD THAT - From the material disclosed in the affidavit, which according to us is extremely unsatisfactory and does not address the issues which were directed by this Court to be addressed, inasmuch as there is not a whisper as to within what period of time the GST, Council would create GST Appellate Tribunal for the State of U.P. and the Government would notify the same - It is needless to say that it is imperative that this issue be taken up by the Central Government as well as the GST Council, as expeditious as possible, as they are under the legislative mandate to create a GST Appellate Tribunal in the State of U.P. and they cannot shirk from their statutory obligation in this regard. The High Court in exercise of power under Article 226 of the Constitution of India can pass appropriate orders for compliance of the statutory provisions contained in various enactments. In the present case a provision has been made in Section 109 for creation of the GST, Appellate Tribunal, but the reasons best known to the respondents only for the State of U.P. said Appellate Tribunal has not been constituted - The persons aggrieved by the order of the First Appellate Authority have no other remedy than to file a writ petition before this Court, in absence of GST, Appellate Tribunal. In the interest of justice it is hereby provided that let this Court be informed by means of of an affidavit filed by the Secretary, Ministry of Finance, Government of India, New Delhi as to within what period of time the GST, Appellate Tribunal for the State of U.P. would be constituted. Let an affidavit be filed by the next date of listing. List this case on 25.02.2020, on which date the Additional Secretary, Ministry of Finance, Government of India, New Delhi shall appear before this Court for assistance.

Summary

Issues:
1. Establishment of GST Appellate Tribunal in the State of U.P.
2. Legal implications of the location of the State Bench of the Tribunal.
3. Compliance with statutory provisions under Section 109 of the U.P. Goods and Service Tax Act, 2017.
4. Remedies available to aggrieved parties in the absence of the GST Appellate Tribunal.

Issue 1: Establishment of GST Appellate Tribunal in the State of U.P.
The judgment discusses the series of events leading to the proposal for the constitution of the GST Appellate Tribunal in the State of U.P. Initially, the U.P. Government requested the GST Council to consider setting up a State bench along with 20 area benches. Subsequent revisions were made to the proposal, leading to a recommendation for the State Bench to be established in Allahabad. However, the judgment highlights the jurisdictional issue, stating that the determination of the State Bench's location falls under the domain of the Central Government. The Central Government's consideration of this matter was emphasized, and the need for expeditious action to fulfill the statutory obligation of establishing the Tribunal in U.P. was underscored.

Issue 2: Legal implications of the location of the State Bench of the Tribunal
The judgment scrutinizes the legal implications of determining the location of the State Bench of the GST Appellate Tribunal. It clarifies that while the State Government can decide the place of area benches, the location of the State Bench is within the Central Government's jurisdiction. The judgment points out the need for compliance with Section 109(6) of the CGST Act, 2017, and highlights the pending proposal for filing a Special Leave Petition (SLP) against a previous judgment. The lack of a clear timeline for the establishment of the Tribunal and the absence of legal impediments were noted, emphasizing the urgency of addressing this issue promptly.

Issue 3: Compliance with statutory provisions under Section 109 of the U.P. Goods and Service Tax Act, 2017
The judgment stresses the importance of complying with statutory provisions, specifically Section 109, which mandates the creation of the GST Appellate Tribunal. It highlights the unsatisfactory nature of the information provided in the affidavit, noting the lack of clarity on when the Tribunal would be established. The Court emphasizes the legislative mandate for creating the Tribunal in U.P. and the government's obligation to fulfill this statutory requirement without delay.

Issue 4: Remedies available to aggrieved parties in the absence of the GST Appellate Tribunal
The judgment acknowledges the absence of the GST Appellate Tribunal in U.P. and the resulting lack of remedy for parties aggrieved by decisions of the First Appellate Authority. It underscores the significance of having all necessary authorities and tribunals in place before tax imposition to ensure that taxpayers are not left without recourse. The Court directs the Secretary, Ministry of Finance, Government of India, to provide a timeline for the establishment of the Tribunal and schedules a hearing for further updates.

By addressing these issues comprehensively, the judgment highlights the legal intricacies surrounding the establishment of the GST Appellate Tribunal in the State of U.P. and emphasizes the need for prompt action to fulfill statutory obligations and provide necessary remedies to aggrieved parties.