The Central Government has issued Notification dated 16-09-2016 whereby all the provisions of The Constitution (101st Amendment) Act, 2016 comes into effect from 16/09/2016. Section 1 is also effective w.e.f. 16/09/16, which gives power to the Central Government to issue notification for effecting the various provisions of the said Act. Now, when Section 1 itself has come into force w.e.f. 16/09/16, than under which power the Central Government issued notification on 10/09/2016 for bringing into force Section 12 of the Act w.e.f. 12/09/2016. It is pertinent to mention that Section 12 has inserted Article 279A in the Constitution which has conferred powers to the President to constitute GST Council and using the same, the President has already constituted GST Council w.e.f. 15/09/2016.
Does it mean GST Council is formed without having constitution power and is therefore void ab initio?
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Author : Manoj Agarwal
Address : Ganpati Campus, Lal Building Road, Rourkela – 769012, ODISHA
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My views has been endorsed by Editor of Tax India On Line TIOL…Obviously in a much better language, but the issue is same as originally highlighted by me
Sir,
When I read in the papers that Central Government has formed the GST council, I was wondering because I saw in the Act that it is the President who has to form the GST Council. I was preparing a PPT then and left this point little vague. So, the GST Council constituted by the President w.e.f. 15/09/2016 will be the one which is valid. And they would have, by now reissued the notice for the meeting which they have called on 22nd and 23rd.
I am also thinking that there is another possibility. The cabinet would have met on that date and decided to recommend to the President to form the council and it has been wrongly/over enthusiastically reported in the media /press note that the Cabinet has formed the GST Council.
I concur. However i do not believe in the letter of the law. I only go by the principles of how the courts interpret it and where applicable, how the enforcement agencies act on it. I believe that by the validity of the article, the constitution of the GST council does prima facie have a patent error in its formation. However, is this error actionable against ? I do not believe so unless of course someone is prejudiced against it. I don’t see how anyone is prejudiced against this right now so i doubt the objection will have any validity.
I agree completely. Let’s see what happens.