‘GST tribunal composition unconstitutional’

The Madras High Court on Friday held that the composition of the GST Appellate Tribunal (GSTAT) under the prevailing GST regime is unconstitutional, especially with it having more technical members than judicial members.
‘GST tribunal composition unconstitutional’
Madras High Court

Chennai

A division bench comprising Justice S Manikumar and Subramonium Prasad which passed the order in the chamber on Friday declared Sections 109 and 110 of the GST Act as unconstitutional in so far as prescribing qualification for judicial members.

On the exclusion of lawyers from being appointed as members of GSTAT which was also under challenge, the bench held that advocates are entitled to be appointed as judicial members if recommended. The appointment, however, cannot be claimed as a right, the bench led by Justice Manikumar said.

Under the present GST regime, only civil servants and judicial officers are eligible for appointment to the appellate tribunal.

The case involved two similar petitions, one by advocate V Vasanthakumar and another by the Revenue Bar Association (RBA). Both petitions assailed Sections 109 and 110 of the GST Act, which held that the appellate tribunals have one judicial member and two technical members, of which one would be from the Centre and the other from the State.

It was argued that dominance of technical members on the GSTAT would violate the doctrine of separation of powers and infringe upon the independence and impartiality of the judiciary.

Appearing for RBA, senior advocate Arvind Datar had argued that exclusion of advocates from appointment to the GSTAT was incomprehensible as the Constitutional scheme called for the appointment of persons with judicial expertise as opposed to domain expertise to the tribunal.

Additional Solicitor General G Rajagopalan argued that the composition of tribunals must conform to the concerned statute. He said a lawyer’s right to practice under Article 19 (1) (g) of the Constitution does not include the right to be appointed a judge.

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