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TMI Blog2022 (3) TMI 1370X X X X Extracts X X X X X X X X Extracts X X X X ..... he proper officer as defined under the CGST Act and UPGST Act, both are proper officers within their territorial jurisdiction and have been conferred with jurisdiction and powers under both the Acts to exercise their jurisdiction as proper officers subject to a rider that if an order is issued by a proper officer under the State Act or the Union territory Act on a subject matter then on the same subject matter, order shall not be passed by a proper officer under the CGST Act and vice versa and the orders so passed shall be intimated to the other jurisdictional officer under the other Act - Since proper officers under both the Acts have been empowered to exercise powers within their territorial jurisdiction and since both the set of officers i.e. under the CGST Act and UPGST Act are authorized to pass assessment orders, therefore, there arose necessity for division of work between two sets of officers, i.e. under CGST Act and UPGST Act having same territorial jurisdiction. A proper officer under the UPGST Act/CGST Act has inherent jurisdiction over assessees falling within his territorial jurisdiction but that jurisdiction has to be exercised as per cases assigned by the designat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hopra, learned Senior Advocate, assisted by Mahima Jaiswal and Sri Saurabh Sharma, learned counsel for the petitioner, Sri B.P. Singh Kachhawah, learned Standing Counsel for the respondent nos. 3,4 and 6 and Sri Krishna Ji Shukla, learned counsel for the respondent nos. 1 and 5. FACTS 2. Briefly stated facts of the present case are that the petitioner claims to be engaged in the business of lubricants after obtaining registration under the Central Goods and Services Tax Act, 2017 (hereinafter referred to as 'CGST Act') and the U.P. Goods and Services Tax Act, 2017 (hereinafter referred to as 'UPGST Act'). According to the petitioner as per division of work his case for the tax period 2017-18 (July, 2017 to March, 2018) was assigned to the Officer of Central Tax (hereinafter referred to as 'the Central Officer') but the show cause notice dated 25.6.2021 for assessment under section 73 of CGST Act/UPGST Act was issued by the Officer of the State Tax (hereinafter referred to as 'the State Officer') i.e. Dy. Commissioner, Commercial Tax Saharanpur, Sector 10, Saharanpur (B), Uttar Pradesh. The petitioner submitted reply to the show cause no ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Uttar Pradesh Goods and Services Tax Act, 2017 2(21) central tax means the central goods and services tax levied under section 9; 2(21). central tax means the central goods and services tax levied under section 9 of the Central Goods and Services Tax Act (Act No. 12 of 2017); 2(91) proper officer in relation to any function to be performed under this Act, means the Commissioner or the officer of the central tax who is assigned that function by the Commissioner in the Board; 2 (91) . proper officer in relation to any function to be performed under this Act, means the Commissioner or the officer of the State tax who is assigned that function by the Commissioner; 6. Authorisation of officers of State tax or Union territory tax as proper officer in certain circumstances (1) Without prejudice to the provisions of this Act, the officers appointed under the State Goods and Services Tax Act or the Union Territory Goods and Services Tax Act are authorised to be the proper officers for the purposes of this Act, subject to such co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or services or both. (4) The Government may, on the recommendations of the Council, by notification, specify a class of registered persons who shall, in respect of supply of specified categories of goods or services or both received from an unregistered supplier, pay the tax on reverse charge basis as the recipient of such supply of goods or services or both, and all the provisions of this Act shall apply to such recipient as if he is the person liable for paying the tax in relation to such supply of goods or services or both. (5) The Government may, on the recommendations of the Council, by notification, specify categories of services the tax on intra-State supplies of which shall be paid by the electronic commerce operator if such services are supplied through it, and all the provisions of this Act shall apply to such electronic commerce operator as if he is the supplier liable for paying the tax in relation to the supply of such services: PROVIDED that where an electronic commerce operator does not have a physical presence in the taxable territory, any person representing such electronic commerce operator for any purpose in the taxable territory sha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed by the Government on the recommendations of the Council. (3) The Government may, on the recommendations of the Council, by notification, specify categories of supply of goods or services or both, the tax on which shall be paid on reverse charge basis by the recipient of such goods or services or both and all the provisions of this Act shall apply to such recipient as if he is the person liable for paying the tax in relation to the supply of such goods or services or both. (4) The Government may, on the recommendations of the Council, by notification, specify a class of registered persons who shall, in respect of supply of specified categories of goods or services or both received from an unregistered supplier, pay the tax on reverse charge basis as the recipient of such supply of goods or services or both, and all the provisions of this Act shall apply to such recipient as if he is the person liable for paying the tax in relation to such supply of goods or services or both. (5) The Government may, on the recommendations of the Council, by notification, specify categories of services the tax on intra-State supplies of which shall be paid by the elect ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 90% for the State tax administration and 10% for the Central tax administration and those units above the turnover of ₹ 1.5 crore shall be divided in the ratio of 50% each for the State and the Central tax administration; vi. The division of the taxpayers may be switched between the Centre and the States at such interval as may be decided by the Council; vii. The above arrangement shall be reviewed by the Council from time to time; viii. Both the Central and the State tax administration shall have the power to take intelligence-based enforcement action in respect of the entire value chain; ix. Powers under the IGST Act shall be cross-empowered to the State tax administration on the same basis as under the CGST and the SGST Acts either under law or under Article 258 of the Constitution but with the exception that he Central tax administration shall alone have the power to adjudicate a case where the disputed issue relates to place of supply, or when an affected State requests that the case be adjudicated by the CGST authority and for such issues of export and import as may be discussed in the Law Committee of officers and brought back to the Cou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or short UTGST Act) are authorized to be the proper officer for the purposes of this Act, subject to such condition as the Government shall, on the recommendations of the Council, by notification, specify. Section 6(2)(a) of the CGST Act mandates that where any proper officer under the CGST Act issues an order, he shall also issue an order under the SGST Act or the UTGST Act as authorized under those Acts, as the case may be, under intimation to the jurisdictional officer of the State tax or the Union territory Tax. Clause (2) of sub section (2) of Section 6 of the CGST Act/UPGST Act mandates that where a proper officer under the SGST Act or the UTGST Act has initiated any proceedings on a subject-matter, no proceedings shall be initiated by the proper officer under the CGST Act on the same subject-matter. 11. Section 6(1) of the UPGST Act also starts with non obstante clause and provides that officers appointed under the CGST Act are authorized to be the proper officers for the purposes of this Act, subject to such conditions as the Government shall, on the recommendations of the Council, by notification specify. Clause (a) of sub-Section (2) of Section 6 of the UPGST Act ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cessity for division of work between two sets of officers, i.e. under CGST Act and UPGST Act having same territorial jurisdiction. Consequently,the GST Council evolved the formula in its IXth Meeting held on 16.01.2017 for division of work between two sets of proper officers which has been reproduced above, and consequent thereto the Committee constituted at the State level has distributed and assigned taxpayers for the purposes of assessment to both sets of proper officers. 15. Thus the proper officer under the CGST Act and the proper officer under the UPGST Act, both are jurisdictional proper officers and have jurisdiction to pass assessment order with respect to an assessee within their territorial jurisdiction but for administrative purposes the order no. 04/2018 dated 12.9.2018 was issued by the Commissioner of Commercial Tax, U.P. in terms of the Agenda item no. 28 of the Minutes of the IX GST Council meeting dated 16.1.2017 and circular no. 01/2017 of the GST Council dated 29.1.2017. 16. In terms of the aforesaid order no. 04/2018 dated 12.9.2021 issued by the Commissioner, Commercial Tax, Uttar Pradesh and the Chief Commissioner of Central Tax, Meerut Zone, Luck ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... meeting of the GST Council dated 16.1.2017 agenda Item no. 28 and the order no. 04/2018 dated 12.9.2018 jointly issued by the State and Central authorities, leads to an irresistible conclusion that proper officer under the UPGST Act and proper officer under the CGST Act both have jurisdiction over assessees falling within their territorial jurisdiction but for administrative convenience, assignment of taxpayers have been made by the designated committee at the State level. 19. Thus, a proper officer under the UPGST Act/CGST Act has inherent jurisdiction over assessees falling within his territorial jurisdiction but that jurisdiction has to be exercised as per cases assigned by the designated committee comprising Chief Commissioner/Commissioner, Commercial Taxes of respective States and jurisdictional Central Tax Chief Commissioners/Commissioners. In the present set of facts, the Chief Commissioner of Central Taxes, Lucknow and Meerut Zone, Lucknow and the Commissioner of Commercial Taxes, U.P. issued the aforesaid order no. 04/2018 assigning the taxpayers to proper officers and the case of the petitioner has been assigned to the proper officer under the CGST Act i.e. Cent ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ticular order is patently one which could not, on any conceivable view of its jurisdiction, have been passed by such court, such an order can neither be ignored nor even recalled, annulled, revoked or set aside in subsequent proceedings by the same court. This distinction is well brought out in the speeches of Lord Diplock, Lord Edmund- Davies and Lord Scarman in Re Racal Communications Ltd., [1980] 2 All E R 634. In the interests of brevity, I resist the temptation to quote extracts from the speeches here. DIFFERENCE BETWEEN INHRENT LACK OF JURISDICTION AND ERROR OF JURISDICTION 24. In the case of H.V. Nirmala Vs. Karnataka State Financial Corporation and others (2008) 7 SCC 639 (paras 13 and 14), Hon'ble Supreme Court has held as under: 13. ......An authority may lack inherent jurisdiction in which case the order passed would be a nullity but it may commit a jurisdictional error while exercising jurisdiction. ...... 14. ........A jurisdictional issue should be raised at the earliest possible opportunity. A disciplinary proceedings is not a judicial proceeding. It is a domestic tribunal. There exists a distinction between a domestic tribuna ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ch Court is established and functions. 21. The word jurisdiction is derived from Latin words Juris and dico, meaning I speak by the law and does not relate to rights of parties as between each other but to the power of the court. Jurisdiction relates to a class of cases to which a particular case belongs. Jurisdiction is the authority by which a judicial officer takes cognizance and decides the cases. It only presupposes the existence of a duly constituted court having control over subject-matter which comes within classification limits of the law under which court has been established. It should have control over the parties litigant, control over the parties' territory, it may also relate to pecuniary as well as the nature of the class of cases. Jurisdiction is generally understood as the authority to decide, render a judgment, inquire into the facts, to apply the law, and to pronounce a judgment. When there is the want of general power to act, the court has no jurisdiction. When the court has the power to inquire into the facts, apply the law, render binding judgment, and enforce it, the court has jurisdiction. Judgment within a jurisdiction has to be immune ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and to carry the judgments into effect ; the power to enquire into the facts, to apply the law, to pronounce the judgment and to carry it into execution. 29. In the case of Nusli (supra) Hon'ble Supreme Court vide paragraph 88 held that there is difference between existence of jurisdiction and exercise of jurisdiction. The existence of jurisdiction is reflected by the fact of amenabilities of the jurisdiction to attack in the collateral proceedings. If the court has an inherent lack of jurisdiction its decision is open to attack as nullity. 30. From the scheme of the Act as discussed above it is evident that the respondent no. 4 being proper officer under the Act having territorial jurisdiction over the petitioner assessee is competent to exercise the powers conferred under the Act in respect of assessee, falling under his territorial jurisdiction. But as per minutes of the meeting of the G.S.T. Council and the circular issued in this regard, the distribution of work for administrative convenience was made and as per which the case of the petitioner was assigned to a central officer. Thus it is not a case that the state officer i.e. the respondent no. 4 lack ..... X X X X Extracts X X X X X X X X Extracts X X X X
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