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TMI Blog2023 (2) TMI 878X X X X Extracts X X X X X X X X Extracts X X X X ..... on which the President or State President, as the case may be, of the Appellate Tribunal enters office, whichever is later. As of date, there are no positive statement from the respondents to the exact time or date on which the contingency provided in Clause 4.2, that is, President or State President entering office, would occur. The question is whether the Petitions need to be kept pending in this Court. In most of the Petitions filed on the ground that the Tribunal is unavailable, this Court has granted interim protection - The Chairman of the Board, in the affidavit, has indicated that no hardship would be caused to the taxpayers because of the non-constitution of the Tribunal. Reading the affidavit along with Circular, it is clear that the Government does not intend that taxpayers are prejudiced for want of the Tribunal. With that intent, the period of limitation has been extended. The appealable orders (to the Tribunal) would not be implemented till the Tribunal becomes functional. That being the position, the writ petitions do not need to remain pending in this Court. Some time after the tribunal becomes functional as above can be given - Petition disposed off. - ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uthority or the Revisional Authority in the cases where one of the issues involved relates to the place of supply. (6) The Government shall, by notification, specify for each State or Union territory, except for the State of Jammu and Kashmir, a Bench of the Appellate Tribunal (hereafter in this Chapter, referred to as State Bench ) for exercising the powers of the Appellate Tribunal within the concerned State or Union territory: Provided that for the State of Jammu and Kashmir, the State Bench of the Goods and Services Tax Appellate Tribunal constituted under this Act shall be the State Appellate Tribunal constituted under the Jammu and Kashmir Goods and Services Tax Act, 2017: Provided further that the Government shall, on receipt of a request from any State Government, constitute such number of Area Benches in that State, as may be recommended by the Council: Provided also that the Government may, on receipt of a request from any State, or on its own motion for a Union territory, notify the Appellate Tribunal in a State to act as the Appellate Tribunal for any other State or Union territory, as may be recommended by the Council, subject to such terms and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ember Technical (Centre) from one Bench to another Bench, whether National, Regional, State or Area. 13) The State Government, in consultation with the State President may, for the administrative convenience, transfer a Judicial Member or a Member Technical (State) from one Bench to another Bench within the State. (14) No act or proceedings of the Appellate Tribunal shall be questioned or shall be invalid merely on the ground of the existence of any vacancy or defect in the constitution of the Appellate Tribunal. 4. These Writ Petitions under Article 226 of the Constitution of India are filed on the ground that the Appellate Tribunal is not yet constituted. Since various such Petitions are being filed in this Court and taking note of the large pendency of such cases, we had directed the Respondents to file a reply affidavit as to the position brought about by non-constitution of the Appellate Tribunal. 5. The Chairman of the Central Board of Indirect Taxes and Customs (the Board ) has filed an affidavit in Writ Petition no. 10883 of 2019 on 12 October 2022, wherein the Chairman has given the factual position as under:- ii) Vide Notification SO 1359(E) da ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Parliament/Legislature. 03. I humbly say and submit that delay in the formation of GSTAT is neither intentional nor due to negligence or apathy but due to the circumstances stated above. 04. I humbly say and submit that no hardship is caused to the taxpayers/trade due to non-formation fo GSTAT as period of limitation for filing appeal to the Tribunal is extended vide Central Goods Service Tax (ninth Removal of Difficulties) Order, 2019 dated 03.12.2019 (Annexure II), so that the appeal can be filed within three months after constitution of Tribunal. (emphasis supplied) 6. Mr. Anil Singh, learned Additional Solicitor General has placed the Circular No. 132/2/2020-GST dated 18 March 2020 issued by the Board, giving clarification in respect of appeals in regards to non-constitution of Appellate Tribunal. After quoting the relevant Rules, the Circular states as under:- 4.2 The appellate tribunal has not been constituted in view of the order by Madras High Court in case of Revenue Bar Assn. v. Union of India and therefore the appeal cannot be filed with three months from date on which the order sought to be appealed against is communicated. In order to re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... it is clear that the Government does not intend that taxpayers are prejudiced for want of the Tribunal. With that intent, the period of limitation has been extended. As a corollary of the intention expressed in the affidavit and the Circular, it follows that the appealable orders (to the Tribunal) would not be implemented till the Tribunal becomes functional. That being the position, the writ petitions do not need to remain pending in this Court. Some time after the tribunal becomes functional as above can be given. 11. It would be advisable, to avoid further complications, that the Respondent-Board issues instructions to incorporate Clause 4.2 of the Circular dated 18 March 2020 in each order which is appealable to the Appellate Tribunal constituted under Section 109 of the Act. This would guide the aggrieved parties as to the future course of conduct and reduce needless litigation in the form of filing writ petitions such as the present ones. The Learned ASG states that this option would be considered 12. Therefore, we dispose of the Petitions as follows. a) The period of filing the Appeal will stand extended as indicated in Clause 4.2 of the Circular dated 18 March 202 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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