Case Law Details
CA. P.J. Johney Vs GST Council (Kerala High Court)
HC directs Government to complete the selection process of members within four months for initiating GSTAT operations
Summary: In the case of CA. P.J. Johney v. GST Council, the Kerala High Court addressed the delay in establishing the Goods and Services Tax Appellate Tribunal (GSTAT). The petitioner, CA. P.J. Johney, filed a Public Interest Litigation (PIL) urging the court to expedite the formation of the GSTAT as mandated by Section 112 of the Central Goods and Services Tax Act (CGST Act) and sought an amendment to Section 169. This amendment would require assessing officers to serve notices and orders through at least three different modes, ensuring compliance with the principles of natural justice. However, the court ruled that the request for amending Section 169 could not be addressed in a PIL, as such matters are suited for individual litigation. The court emphasized that these procedural concerns must be resolved through proper channels rather than through broad public interest petitions. Additionally, the High Court directed the government to complete the selection process for GSTAT members within four months, allowing operations to commence. The judgment highlights the necessity for timely action in establishing the GSTAT while clarifying the limitations of PILs in altering statutory provisions.
The Hon’ble Kerala High Court in the case of CA. P.J. Johney v. GST Council, New Delhi [W.P. (C) No. 12267 of 2024 dated July 9, 2024], directed the Government to appoint members within four months for initiating Goods and Services Tax Appellate Tribunal (“GSTAT”) operations. However, the Court denied the Assessee’ s request to amend Section 169 of the Central Goods and Services Tax Act (“the CGST Act”) making service of notices and orders through at least three modes of service mandatory, stating that such issues were subject to individual litigation and therefore, cannot be adjudicated upon by way of Public Interest Litigation (“PIL”).
Facts:
CA. P.J. Johney (“the Petitioner”), filed a PIL challenging the delay in establishment of GST Appellate Tribunal and seeking an amendment to Section 169 of the CGST Act. The Petitioner argued that the GSTAT, as required under Section 112 of the CGST Act, has not yet been established and requested the Hon’ble High Court to expedite its establishment. Additionally, the Petitioner sought amendment in Section 169 of the CGST Act, thereby, mandating assessing officers serve notices and orders through at least three different modes to ensure that the principles of natural justice is complied with and adequate opportunity of hearing is provided.
Held:
The Hon’ble Kerala High Court in W.P. (C) No. 12267 of 2024 held as that the request to amend Section 169 of the CGST Act, 2017 requiring multiple modes of services for notices and orders cannot be adjudicated upon in PIL and is subject to individual litigation. The Hon’ble High Court further directed the Government to complete the selection process within four months for initiating GST operation.
Our Comments:
Section 112 of the CGST Act relates to appeal to appellate tribunal by any person who is aggrieved by the decision or order passed by the appellate authority or revisional authority. The section also provides for appeal by revenue department against the decision or order passed by the appellate or revisional authority. Further, Section 110 of the CGST Act interlalia relates to qualification, appointment or conditions of service relating to the appointment of members for GSTAT.
FULL TEXT OF THE JUDGMENT/ORDER OF KERALA HIGH COURT
This writ petition is filed by the Chartered Accountant seeking the following prayers;
“(i) To issue a Writ of Mandamus or other appropriate Writ, orders or directions, directing the respondents to expeditiously establish the GST Appellate Tribunal in the State of Kerala in accordance with the provisions of Section 112 of the CGST Act 2017 forthwith.
(ii) To issue a Writ of Mandamus or any other appropriate Writ, orders, or directions, directing the respondents to rectify Section 169 of the CGST Act 2017 by correcting the erroneous usage of the word “or” with the correct word “and”, thereby such amendment will mandate assessing officers to serve notices and orders through at least minimum of three alternative modes of service, ensuring compliance with the principles of natural justice and providing an opportunity for affected parties to be heard. And
(iii) To issue such other writ, order, or direction, which this Hon’ble court deems fit and necessary in the interest of justice.”
2. In regard to the first prayer, the learned Senior Government Pleader submits that the steps have already been taken to establish the GST Appellate Tribunal and the selection process is going on. This submission is recorded.
3. In regard to the second prayer, this Court cannot grant such a relief in the public interest litigation filed by the petitioners. The individual grievance of the person will have to be considered in appropriate manner in an individual litigation to be initiated by such person. Therefore, we decline the second prayer.
4. In the light of the fact that the process has already been initiated to establish the GST Appellate Tribunal, we order that entire selection process shall be completed within a period of four months.
The writ petition is disposed of as above.
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