1 · abhishek chopra v/s union of india & others ... , 2017 is annexed hereto and marked as...

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D.B. Civil Writ Petition (PIL) No. /2018 Abhishek Chopra V/s Union Of India & Others

INTHEHIGHCOURTOFJUDICATUREFOR

RAJASTHANATJODHPUR

D.B.CIVILWRITPETITION(PIL)NO. /2018

Petitioner:-

AbhishekChopraS/oShriRajeshChopraAge:33years,ResidentofPaliMarwar

VERSUS

Respondents:-

1. UnionofIndia,ThroughSecretaryMinistryofFinance

DepartmentofRevenueNo.137, NorthBlock,NewDelhi-110001.2. UnionofIndia, ThroughSecretaryMinistryofLaw&Justice 4thFloor,AWing,RajendraPrasadRoad, ShastriBhavan,NewDelhi–110001.3. TheGoodsandServiceTaxCouncil(GSTCouncil) ThroughSecretaryOfficeoftheGSTCouncilSecretariat, 5thFloor,TowerII, JeevanBhartiBuilding,JanpathRoad, ConnaughtPlace,NewDelhi-110001.4. StateofRajasthan ThroughChiefSecretary,FinanceDepartment,

Jaipur

******

PublicInterestLitigationPetitionunderArticle226

oftheConstitutionofIndiareadwithRule385-Aofthe

RajasthanHighcourtRules,1952

*****

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INTHEMATTEROFCHAPTERSXVIIOFTHECGSTACT,2017

&RGSTACT,2017READWITHCHAPTERXIIOFTHECGST

RULES,2017

To,Hon’ble The Chief Justice, and his otherCompanion Judges of the Rajasthan High CourtatJodhpur.

MAYITPLEASEYOURLORDSHIPS,

Petitioner, above named most respectfully submits

asunder:-

(1) INTRODUCTION

1. ThepresentPetitionunderArticles226and/or227of the

Constitution of India is being filed by way of Public Interest

LitigationandthePetitionerhasnopersonalinterest.ThePetition

is being filed in the interest of the public at large. The present

Petitionisfiledtoseekingdeclarationthat:

(a) ChapterXVIIoftheCentralGoodsandServicesTax(CGST)

Act,2017,moreparticularlySection96whichrelateto‘Authority

for Advance Ruling (AAR) and Section 99 which relate to

‘AppellateAuthorityforAdvanceRuling(AAAR)’;

(b) Chapter XVII of the Rajasthan Goods and Services Tax

(RGST) Act, 2017more particularly Sections 96 which relate to

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‘AuthorityforAdvanceRuling(AAR)’andSection99whichrelate

to‘AppellateAuthorityforAdvanceRuling(AAAR)’;

(c) Chapter XII of the Central Goods and Services Tax (CGST)

Rules, 2017 more particularly Rule 103 which relate to the

“Qualification and appointment ofmembers of theAuthority for

AdvanceRuling”;

(d) Notification No.9/2017 – Central Tax dated 28.06.2017 in

termsofs.96ands.99oftheCentralGoodsandServicesTaxAct,

2017;

(e) Notification No. 9/2017 – State Tax dated 29.06.2017 in

termsofs.96and99oftheRajasthanGoodsandServicesTaxAct,

2017;

areultravirestheArticles14and50oftheConstitutionofIndia

as the same are void, defective and unconstitutional, being

violativeofdoctrinesof separationofpowers and independence

of judiciary which are parts of the basic structure of the

Constitutionand further contrary to theprinciples laiddownby

theHon’bleSupremeCourt inUnionof Indiav.R.Gandhi(2010)

11 SCC 1 and in Columbia Sportswear Co. v. DIT (2012) 11 SCC

224.

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Copy of the Chapter XVII of Central Goods and Services Tax

(CGST)Act, 2017 is annexedhereto andmarkedasAnnexure-1,

Copy of Chapter XVII of the Rajasthan Goods and Services Tax

(RGST)Act, 2017 is annexedheretoandmarkedasAnnexure-2,

CopyofChapterXIIoftheCentralGoodsandServicesTax(CGST)

Rules, 2017 is annexedheretoandmarkedasAnnexure-3, Copy

of theNotificationNo.9/2017 – Central Tax dated 28.06.2017 is

annexed hereto and marked as Annexure-4, Copy of the

NotificationNo.9/2017– StateTax dated29.06.2017 is annexed

heretoandmarkedasAnnexure-5tothisPetition.

(2) PARTICULARSOFTHEPETITIONER

2. ThePetitioner isaqualifiedC.A.andhasundertakenmany

other specialized certification courses. He works as an advisor/

consultant and his core areas of expertise are banking, taxation,

corporateandcommerciallaws.Heregularlydeliverslecturesand

is invited as regular speaker at various seminars/ workshop

conductedby institutes like ICAI, ICSI, C&AG, Banksandvarious

organizations.Onaccountoftheabove,hegetsanopportunityto

interactwithvariouspeople fromdifferentbackgrounds suchas

businessmen,traders,CharteredAccountants,Lawyers,Students,

Company Secretaries etc. The Petitioner undertakes a rigorous

analysis of legal developments, policies and institutions. The

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sourceof incomeof thePetitioner is fromprovidingconsultancy

services in various fields of law to its individual clients and

corporate.

(3) DECLARATIONANDUNDERTAKINGOFTHEPETITIONERS

3. That the Petitioner is filing the present petition in Public

Interestontheirownandnotattheinstanceofanyotherperson

ororganization.Thelitigationcostandthetravellingexpensesare

being borne by the Petitioner themselves. The Advocate for the

Petitionerhasvolunteeredprobono legalservices.There areno

contemptproceedingsagainstthePetitioner.

(4) FACTS

4. Thatthefactsofthecaseinbriefareasfollows:-

4.1 The Petitioner has preferred this petition against

tribunalisation of justice, bureaucratisation of justice and its

impactonjudicialindependenceandseparationofpowersbefore

thisHon’bleCourt.Therefore,ThePetitionersubmitsthathehas

locusstanditomaintainthepresentwritpetition.

4.2 The 1st and 2nd respondent are the Union of India,

represented through the Ministry of Finance, Department of

RevenueandMinistryofLawandJusticeandareresponsiblefor

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enactment of the Central Goods and Services Tax Act, 2017, 3rd

Respondent isTheGoodsandServiceTaxCouncil (GSTCouncil),

which is a constitutional body under Article 279A of the

Constitution,Article279A(4)(c)oftheConstitutionofIndiaand

isresponsibleformakingrecommendationstotheUnionandthe

States on themodel Goods and Services Tax Laws, principles of

levy, apportionment of Goods and Services Tax etc. 4th

Respondent is the State of Rajasthan through its Finance

Department is responsible forenactmentof theRajasthanGoods

andServicesTaxAct,2017.

4.3 Genesis: The idea of moving towards the GST was first

mooted by the then Union Finance Minister in his Budget for

2006-07.Initially, itwasproposedthatGSTwouldbeintroduced

from1stApril,2010.TheEmpoweredCommitteeofStateFinance

Ministers(EC)whichhadformulatedthedesignofStateVATwas

requestedtocomeupwitharoadmapandstructurefortheGST.

Joint Working Groups of officials having representatives of the

States as well as the Centre were set up to examine various

aspectsoftheGSTanddrawupreportsspecificallyonexemptions

and thresholds, taxation of services and taxation of inter-State

supplies. It is submitted that, the fiscal powers between the

Centre and the States have been clearly demarcated in the

Constitution with almost no overlap between the respective

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domains.Incaseofinter-Statesales,theCentrehashadthepower

to levya tax (theCentral SalesTax)but, the tax is collectedand

retainedentirelyby theoriginatingStates.As for services, it has

been the Centre alone that is empowered to levy service tax.

IntroductionofGSTrequiredamendments in theConstitutionso

astoconcurrentlyempowertheCentreandtheStatestolevyand

collecttheGST.It isalsosubmittedthat, toaddressall theseand

other issues, the Constitution (122nd Amendment) Bill was

introduced in the 16th Lok Sabha on 19.12.2014. The Bill

provided for a levy of GST on supply of all goods or services

except forAlcohol forhumanconsumption. Itwasproposed that

thetaxshallbeleviedasDualGSTseparatelybutconcurrentlyby

the Union (central tax - CGST) and the States (including Union

Territorieswithlegislatures)(Statetax-SGST)/Unionterritories

withoutlegislatures(Unionterritorytax-UTGST).TheParliament

wouldhaveexclusivepowertolevyGST(integratedtax-IGST)on

inter-State trade or commerce (including imports) in goods or

services.Furtherthebillhadbeenratifiedbyrequirednumberof

States and received assent of the President on 8th September,

2016 and has since been enacted as Constitution (101st

Amendment)Act,2016w.e.f.16thSeptember,2016.

4.4 One of features of GST was to constitute ‘Advance Ruling

Authority’inordertoenablethetaxpayertoseekabindingclarity

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on taxation matters from the department. Centre would adopt

such authority under CGST Act. Pre-GST regime under separate

laws namely Excise, Custom and Service tax had the scheme of

AdvanceRuling.Obtaininganadvance rulinghelps the applicant

in planning their activities which are liable for payment of

Customs,orCentralExciseorservicetax,well inadvance.Italso

bringscertaintyindeterminingtheduty/taxliability,astheruling

given by the Authority for Advance Ruling is binding on the

applicant aswell as Government authorities. Further, it helps in

avoiding long drawn and expensive litigation at a later date.

Seeking an advance ruling is inexpensive and the procedure is

simpleandexpeditious.

4.5 ConceptofAdvanceRulingsenvisagedunderRevisedKyoto

Convention of WCO and Under WTO Agreement on Trade

Facilitation.Standard9.9oftheRevisedKyotoConvention,which

is the International Convention on the Simplification and

HarmonizationofCustomsprocedures andwasadopted in June,

1999asablueprintformodernandefficientCustomsprocedures

inthe21stCentury,dealswithAdvanceRulings.

4.6 LegislativeJourneyofSchemeofAdvanceRulinginIndirect

Taxes:IntheBudgetspeechof1998-99,FinanceMinisterofIndia

proposed the setting up of AAR for Excise and Customs tomeet

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the need for foreign investors to be assured in advance of their

likely indirect tax liability. Legislative provisions for advance

rulingswereintroducedinCustomsAct,1962andCentralExcise

Act, 1944 vide Finance Act of 1999. In 2003, the concept of

Advance Ruling was incorporated in service tax matters by

incorporatinglegislativeprovisionsintheFinanceAct,1994vide

FinanceAct,2003.

4.7 Statutory Provisions Regarding AAR in Pre-GST regime

undermajorindirecttaxes:-

Customs: The legal provisions relating to AAR are

contained inChapterV-Bof theCustomsAct, 1962 fromSection

28E to Section 28M. Further, the Customs (Advance Rulings)

Rules,2002havealsobeenissued.

Central Excise: In respect of Central Excise, the

provisions relating to AAR are contained in the Chapter III-A of

CentralExciseAct,1944fromSection23AtoSection23H.Further,

theCentralExcise (AdvanceRulings)Rules,2002havealsobeen

issued.

Service Tax: In respect of service tax, the provisions

relating toAARarecontained in theChapterV-AofFinanceAct,

1994 from Section 96A to Section 96 I. Further, the Service Tax

(AdvanceRulings)Rules,2003havealsobeenissued.

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4.8 Compositionof theAuthorityofAdvanceRulingunder the

preRSTregime:-

The advance ruling in India is rendered by an Authority

constituted specifically for this purpose known as the Authority

forAdvanceRulings.ItconsistsofaChairmanandtwoMembers.

The Chairman is a retired Supreme Court Judge. One of the

MemberstobeappointedtobeamemberoftheCBDT,whomay

be referred to as theRevenueMember.TheotherMember is an

officer of the Indian Legal Service, who is qualified to be an

Additional Secretary to the Government of India and may be

referred to as the Law member. The salaries and allowances

payable to, and the terms and conditions of service of the

Membershavebeenprescribedby theGovernmentof India.The

Constitution of the Authority is such that it functions as an

independentquasi-judicialbodydeemedtobeaCivilCourtforthe

purposeofSection195oftheCodeofCriminalProcedure,1973.

4.9 FourLawsnamelyCGSTAct,UTGSTAct, IGSTActandGST

(CompensationtoStates)ActhavebeenpassedbytheParliament

and since been notified on 12thApril, 2017. The levy of the tax

commencedonlyaftertheGSTLawswereenactedbyalltheState

Legislatures. Accordingly, the appointed date for bringing into

forcetheGSTregimewasfixedas01.07.2017.

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4.10 TheentireschemeandconceptofAARhasbeenexplained

in the judgment passed by the Hon’ble Supreme Court in

Columbia Sportswear Company vs. Director of Income-tax,

Bangalore)reported in (2012)11SCC224wherein thequestion

before the Hon’ble court was whether AAR is Tribunal or not?

Samewasanswered inpara7 to10,excerptsof thesameareas

infra:

“7. The meaning of the expression "tribunal" in Article 136and the expression "tribunals" in Article 227 of theConstitution has been explained by Hidayatullah, J., in HariNagar Sugar Mills Ltd. v. Shyam Sunder Jhunjhunwala AIR1961SC1669 inparagraph32, relevantportionofwhich isquotedhereinbelow:

"With the growth of civilisation and the problems ofmodernlife,alargenumberofadministrativetribunalshave come into existence. These tribunals have theauthority of law to pronounce upon valuable rights;theyact ina judicialmannerandevenonevidenceonoath, but they are not part of the ordinary Courts ofCivil Judicature.Theyshare theexerciseof the judicialpoweroftheState,buttheyarebrought intoexistenceto implement some administrative policy or todetermine controversies arising out of someadministrativelaw.TheyareverysimilartoCourts,butarenotCourts.WhentheConstitutionspeaksof'Courts'inArt.136,227or228or inArt.233 to237or in theLists, itcontemplatesCourtsofCivil JudicaturebutnottribunalsotherthansuchCourts.ThisisthereasonforusingboththeexpressionsinArts.136and227.By "Courts" ismeantCourts of Civil Judicatureandby"tribunals", thosebodies ofmenwhoareappointed todecidecontroversiesarisingundercertainspeciallaws.AmongthepowersoftheStateisincludedthepowertodecide such controversies. This is undoubtedly one ofthe attributes of the State and is aptly called thejudicialpoweroftheState.Intheexerciseofthispower,

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a clear division is thus noticeable. Broadly speaking,certain special matters go before tribunals, and theresidue goes before the ordinary Courts of CivilJudicature. Their procedures may differ, but thefunctions are not essentially different. Whatdistinguishes them has never been successfullyestablished...."Thus, the test for determining whether a body is atribunal ornot is to findoutwhether it is vestedwiththejudicialpoweroftheStatebyanylawtopronounceuponrightsorliabilitiesarisingoutofsomespeciallawand this test has been reiterated by this Court inJaswantSugarMillsLtd.v.LakshmiChandAIR1963SC677,AssociatedCementCompaniesLtd.v.P.N.SharmaAIR 1965 SC 1595 and in the recent decision of theConstitutionBenchinR.Gandhi(supra).

8.WemaynowexaminetheprovisionsofChapterXIXBoftheAct on Advance Ruling to find out whether the AuthoritypronouncesupontherightsorliabilitiesarisingoutoftheAct.Section 245N(a) of Chapter XIX B which defines "advancerulings"isextractedhereinbelow:

"245N. In this Chapter, unless the context otherwiserequires,-(a)"advanceruling"means-(i) a determination by the Authority in relation to atransactionwhichhasbeenundertakenor isproposedtobeundertakenbyanon-residentapplicant;or(ii) a determination by the Authority in relation tothe tax liability of a non-resident arising out of atransactionwhichhasbeenundertakenor isproposedtobeundertakenbyaresidentapplicantwithsuchnon-resident, and such determination shall include thedeterminationofanyquestionoflaworoffactspecifiedintheapplication;(iii) a determination or decision by the Authority inrespect of an issue relating to computation of totalincome which is pending before any income-taxauthority or the Appellate Tribunal and suchdetermination or decision shall include thedeterminationordecisionofanyquestionof laworof

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fact relating to such computation of total incomespecifiedintheapplication:[Provided that where an advance ruling has beenpronounced,beforethedateonwhichtheFinanceAct,2003 receives the assent of the President, by theAuthority in respect of an application by a residentapplicantreferredtoinsub-clause(ii)ofthisclauseasitstoodimmediatelybeforesuchdate,suchrulingshallbebindingonthepersonsspecifiedinsection245S;]"

A plain reading of the very definition of advance ruling inSection 245N (a) would show that the Authority is calledupon to make a determination in relation to a transactionwhichhasbeenundertakenor isproposed tobeundertakenbyanon-residentapplicantorinrelationtothetaxliabilityofanon-residentarisingoutofsuchtransactionwhichhasbeenundertaken or proposed to be undertaken by a residentapplicant with such non-resident and such determinationmay be on any question of law or fact specified in theapplication. Further, the Authority may make adeterminationordecisioninrespectofaissuerelatingtothecomputation of total income which is pending before anyincome-tax authority or the Appellate Tribunal and suchdeterminationor decisionmay include thedeterminationordecision of any question of law or of fact relating to suchcomputation of total income specified in the application.Thus,theAuthoritymaydeterminenotonlyatransactionbutalso the tax liability arising out of a transaction and suchdeterminationmayincludeadeterminationofissueoffactorissue of law. Moreover, the Authority may determine thequantum of income and such determination may include adeterminationonaissueoffactorissueoflaw.

9.WealsofindthatthedeterminationoftheAuthorityisnotjust advisory but binding. Section 245S in Chapter XIX-B isquotedhereunder:

"245S. (1) The advance ruling pronounced by theAuthorityundersection245Rshallbebindingonly-(a) ontheapplicantwhohadsoughtit;(b) inrespectofthetransactioninrelationtowhichtherulinghadbeensought;and

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(c) on the Commissioner, and the income-taxauthorities subordinate to him, in respect of theapplicantandthesaidtransaction.(2) The advance ruling referred to in sub-section (1)shallbebindingasaforesaidunlessthereisachangeinlaw or facts on the basis ofwhich the advance rulinghasbeenpronounced."

The binding effect of advance ruling as provided in Section245ShasbeendealtwithbytheAuthority(ChairmanandtwoMembers) inCyrilEugenePereira, Inre[1999]105Taxman273 (AAR-New Delhi) and at page 672 of the ITR, theAuthorityheld:

"Thus, sub-section (2) of section 245S has limited thebindingnatureoftherulingtothecaseoftheapplicantin respect of the transaction in relation to which theadvancerulingissoughtandtotheCommissionerandauthorities subordinate to him only in respect of theapplicant and the transaction involved. This is not tosaythataprincipleoflawlaiddowninacasewillnotbe followed in future. The Act has made the rulingbinding in the case of one transaction only and theparties involved in that case in respect of thattransaction. For other transactions and for otherparties,therulingwillbeofpersuasivenature."

The Authority, thus, held that the advance ruling of theAuthority is binding in the case of one transaction only andthe parties involved in respect of that transaction and forother parties, the ruling will be of persuasive nature. TheAuthority,however,hasclarifiedthatthisisnottosaythataprinciple of law laid down in a case will not be followed infuture.ThisdecisionoftheAuthorityinCyrilEugenePereira,Inre(supra)hasbeentakennoteofbythisCourtinUnionofIndia v. Azadi Bachao Andolan[2003] 263 ITR 706/132Taxman373toholdthattheadvancerulingoftheAuthorityis binding on the applicant, in respect of the transaction inrelation to which the ruling had been sought and on theCommissionerandtheincome-taxauthoritiessubordinatetohim and has persuasive value in respect of other parties.However, ithasalsobeenrightlyheldby theAuthority itself

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thatthisdoesnotmeanthataprincipleoflawlaiddowninacasewillnotbefollowedinfuture.

10. As Section 245S expressly makes the Advance Rulingbindingontheapplicant,inrespectofthetransactionandontheCommissionerandtheincometaxauthoritiessubordinatetohim,theAuthorityisabodyactinginjudicialcapacity.H.M.Seervai in his book "Constitutional Law of India" (ForthEdition) while discussing the tests for identifying judicialfunctions in paragraph 16.99 quotes the following passagefromProf.deSmithsJudicialReviewonpage1502:

"An authority acts in a judicial capacity when, afterinvestigation and deliberation, it performs an act ormakes a decision that is binding and collusive andimposes obligation upon or affects the rights ofindividuals."

Wehave,therefore,nodoubtinourmindthattheAuthorityisa body exercising judicial power conferred on it by ChapterXIX-Bof theActand isa tribunalwithin themeaningof theexpressioninArticles136and227oftheConstitution...”

4.11 Section103ofCGSTActandRGSTAct,givesbindingeffect

ofitsrulingonApplicantaswellasontheconcernedofficerorthe

jurisdictional officer in respect of the applicant, further Section

105 of CGSTAct andRGSTAct provides power of Civil Court to

AAR and AAAR. Excerpts of relevant paras of sections 103 and

105oftherelevantActsnamelyCGSTandRGSTrespectivelyare

parimateriaasinfra:

“...103.(1)TheadvancerulingpronouncedbytheAuthorityortheAppellateAuthorityunderthisChaptershallbebindingonly—(a) on the applicant who had sought it in respect of anymatterreferredtoinsub-section(2)ofsection97foradvanceruling;

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(b) on the concerned officer or the jurisdictional officer inrespectoftheapplicant.(2)Theadvancerulingreferredtoinsub-section(1)shallbebindingunlessthelaw,factsorcircumstancessupportingtheoriginaladvancerulinghavechanged.

105.(1)TheAuthorityortheAppellateAuthorityshall,forthepurposeofexercisingitspowersregarding—(a)discoveryandinspection;(b) enforcing the attendance of any person and examininghimonoath;(c) issuing commissionsand compellingproductionof booksofaccountandotherrecords,have all the powers of a civil court under the Code of CivilProcedure,1908.(2)TheAuthorityortheAppellateAuthorityshallbedeemedtobeacivilcourtforthepurposesofsection195,butnotforthe purposes of Chapter XXVI of the Code of CriminalProcedure, 1973, and every proceeding before the Authorityor the Appellate Authority shall be deemed to be a judicialproceedingswithinthemeaningofsections193and228,andforthepurposeofsection196oftheIndianPenalCode...”

4.12 Considering the judgment of Hon’ble Supreme Court in

Columbia Sportswear Company vs. Director of Income-tax,

Bangalore(supra)andsection103and105ofCGST&RGSTAct,it

isclearthatAARandAAARconstitutedunderCGSTandRGSTare

bodies exercising judicial power conferred on it by respective

laws and are tribunal within the meaning of the expression in

Articles136and227oftheConstitution.

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4.13 It is submitted that the constitution of Tribunals namely

AARandAAARunderCGSThavebeennotifiedunderRGSTrules

wherein it has been provided that officer of the rank of Joint

CommissionerfromCentralandStategovernmentshallformAAR

under section 96 and Chief Commissioner of Central Tax and

Commissionerof State Tax shall formAAARunder section99of

CGST and RGST Acts. This makes it clear that legislature has

subsumed the power of judiciary and infact passed on to

Executive in gross violation of basic structure doctrine of

separationofpower.Itisfurthersubmittedthattheseprovisions

suffer from severe infirmities with regards to doctrine of

separationofpowers and the independenceof the judiciary that

forms part of the basic structure of the Constitution. The

provisions further run contrary to thedirectionswhichought to

be followed as guidelines regarding the structuring and

organisationofTribunalsinIndiaaswaslaiddownbytheHon’ble

SupremeCourtinR.Gandhi(2010)11SCC1).

4.14 TheHon’ble SupremeCourt in R. Gandhi case (supra) had

laid down the following directions and mandated that the

Government of India follow the directions as guidelines while

constitutingtheNCLTandNCLAT:

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a. Only Judges and Advocates can be considered for

appointmentasJudicialMembersoftheTribunal.OnlyHighCourt

Judges,orJudgeswhohaveservedintherankofaDistrict Judge

forat leastfiveyearsorapersonwhohaspracticedasaLawyer

for ten years can be considered for appointment as a Judicial

Member;

b. PersonswhohaveheldaGroupAorequivalentpostunder

the Central or State Government with experience in the Indian

Company Law Service (Legal Branch) and Indian Legal Service

(Grade-1) cannot be considered for appointment as judicial

members.TheexpertiseinCompanyLawserviceorIndianLegal

servicewillatbestenablethemtobeconsideredforappointment

astechnicalmembers;

c. As the NCLT takes over the functions of High Court, the

membersshouldasnearlyaspossiblehavethesamepositionand

status asHigh Court Judges. This can be achieved, not by giving

thesalaryandperksofaHighCourtJudgetothemembers,butby

ensuringthatpersonswhoareasnearlyequalinrank,experience

or competence toHigh Court Judges are appointed asmembers.

Therefore,onlyofficerswhoareholding theranksofSecretaries

or Additional Secretaries alone can be considered for

appointmentasTechnicalmembers.

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d. A `Technical Member' presupposes an experience in the

fieldtowhichtheTribunalrelates.

e. Instead of a five-member Selection Committee with Chief

Justice of India (or his nominee) as Chairperson and two

SecretariesfromtheMinistryofFinanceandCompanyAffairsand

the Secretary in the Ministry of Labour and Secretary in the

MinistryofLawandJusticeasmembers,theSelectionCommittee

shouldbroadlybeonthefollowinglines:

i. Chief Justice of India or his nominee - Chairperson

(withacastingvote);

ii. A senior Judgeof theSupremeCourtorChief Justice

ofHighCourt-Member;

iii. Secretary in the Ministry of Finance and Company

Affairs-Member;and

iv. SecretaryintheMinistryofLawandJustice–Member

f. Thetermofofficeofthreeyearsshallbechangedtoaterm

ofsevenorfiveyearssubjecttoeligibilityforappointmentforone

more term. This is because considerable time is required to

achieveexpertise in theconcerned field.A termof threeyears is

very short and by the time the members achieve the required

knowledge, expertise and efficiency, one term will be over.

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Furtherthesaidtermofthreeyearswiththeretirementageof65

years is perceived as having been tailor-made for persons who

haveretiredorshortlytoretireandencouragestheseTribunalsto

be treated as post- retirement havens. If these Tribunals are to

function effectively and efficiently they should be able to attract

youngermemberswhowillhaveareasonableperiodofservice.

g. Any person appointed asmembers should be prepared to

totallydisassociatehimselffromtheExecutive.

h. To maintain independence and security in service,

suspension of the President/Chairman ormember of a Tribunal

canbeonlywiththeconcurrenceoftheChiefJusticeofIndia.

i. TheadministrativesupportforallTribunalsshouldbefrom

the Ministry of Law & Justice. Neither the Tribunals nor its

members shall seek or be provided with facilities from the

respective sponsoring or parent Ministries or concerned

Department.

j. Two-MemberBenchesoftheTribunalshouldalwayshavea

judicial member. Whenever any larger or special benches are

constituted, the number of Technical Members shall not exceed

theJudicialMembers.

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4.15 The above guidelines were given by the Hon’ble Supreme

Courtbasedonthefollowingprinciplesasenumeratedinpara44

ofthesaidjudgment:-

i) A legislature can enact a law transferring the jurisdiction

exercisedbycourtsinregardtoanyspecifiedsubject(otherthan

those which are vested in courts by express provisions of the

Constitution)toanytribunal.

ii) All courtsare tribunals.Any tribunal towhichanyexisting

jurisdiction of courts is transferred should also be a Judicial

Tribunal.ThismeansthatsuchTribunalshouldhaveasmembers,

personsofarank,capacityandstatusasnearlyaspossibleequal

to the rank, status and capacity of the courtwhichwas till then

dealing with such matters and the members of the Tribunal

should have the independence and security of tenure associated

withJudicialTribunals.

iii) Whenever there is need for `Tribunals', there is no

presumption that there should be technical members in the

Tribunals. When any jurisdiction is shifted from courts to

Tribunals,onthegroundofpendencyanddelayincourts,andthe

jurisdictionsotransferreddoesnotinvolveanytechnicalaspects

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requiringtheassistanceofexperts,theTribunalsshouldnormally

have only judicial members. Only where the exercise of

jurisdiction involves inquiry and decisions into technical or

special aspects, where presence of technical members will be

useful and necessary, Tribunals should have technicalmembers.

IndiscriminateappointmentoftechnicalmembersinallTribunals

willdiluteandadverselyaffecttheindependenceoftheJudiciary.

iv) TheLegislaturecanre-organizethejurisdictionsof Judicial

Tribunals.Forexample,itcanprovidethataspecifiedcategoryof

casestriedbyahighercourtcanbetriedbyalowercourtorvice

versa(Astandardexample is thevariationofpecuniary limitsof

courts). Similarly, while constituting Tribunals, the Legislature

can prescribe the qualifications/eligibility criteria. The same is

however subject to Judicial Review. If the court in exercise of

judicial review is of the view that such tribunalisation would

adverselyaffecttheindependenceofjudiciaryorthestandardsof

judiciary, the courtmay interfere to preserve the independence

and standards of judiciary. Such an exercise will be part of the

checks and balances measures to maintain the separation of

powers and to prevent any encroachment, intentional or

unintentional,byeitherthelegislatureorbytheexecutive.”

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4.16 ItissubmittedthateventhoughtheHon’bleSupremeCourt

hasprescribedthevariousguidelinesinthedecisionofR.Gandhi

(supra)with regard to the constitution of theNCLT andNCLAT,

thesamestandsapplicabletoallthetribunalsinIndia.

4.17 The Petitioner is concerned about the independence of

judicialtribunalsandseekstoprotectthesameandhence,isfiling

thepresentwritpetitionunderArticle226oftheConstitutionof

Indiaaspublicinterestlitigation.

4.18 ThepetitionerhasdirectlyfiledapetitionunderArticle226

of the Constitution as the impugned provisions and Rules are

arbitrary and violative of Article 14 and 50 of the Constitution.

TherighttolifeunderArticle21includestherighttojusticebyan

independent judiciary and by a Tribunal which is free from

executiveorpoliticalinfluence.ThePetitionerisvitallyconcerned

withtheadministrationofjusticeandmaintenanceofruleoflaw

which has been held to be part of the basic structure of the

Constitution.

4.19 The glaring infirmities and consequences to the

independent judicial administration of the various tribunals and

appellatetribunalshascompelledthepresentPetitionertofilethe

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present writ petition under Article 226 of the Constitution of

India.

4.20. That to the best of knowledge of the Petitioner, no public

interestpetitionraisingthesameissueisfiledbeforethisHon’ble

Court.

(5) SOURCEOFINFORMATION

5. Thatsourceofinformationofthefactspleaded,isbasedon

the relevant notifications published in the Official Gazette

published byMinistry of Law and Justice from time to time and

made available to the public on their official website

www.cbec.gov.in and from various notification published by the

State of Rajasthan from time to time andmade available to the

public on their official website and upon the further inquiries

madebythePetitionertodeterminetheveracityofthesame.The

information is based on public documents which are freely

availableinpublicdomain.

(6) NATURE&EXTENTOFINJURYCAUSED/APPREHENDED

6. It is submitted that the constitution of Tribunals namely

AARandAAARunderCGSThavebeennotifiedunderRGSTrules

wherein it has been provided that officer of the rank of Joint

CommissionerfromCentralandStategovernmentshallformAAR

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under section 96 and Chief Commissioner of Central Tax and

Commissionerof State Tax shall formAAARunder section99of

CGST and RGST Acts. This makes it clear that legislature has

subsumed the power of judiciary and infact passed on to

Executive in gross violation of basic structure doctrine of

separationofpower.Itisfurthersubmittedthattheseprovisions

suffer from severe infirmities with regards to doctrine of

separationofpowers and the independenceof the judiciary that

forms part of the basic structure of the Constitution. The

provisions further run contrary to thedirectionswhichought to

be followed as guidelines regarding the structuring and

organisationofTribunalsinIndiaaswaslaiddownbytheHon’ble

SupremeCourtinR.Gandhi(2010)11SCC1).

(7) REPRESENTATIONSMADE

7. ThatthePetitionerhasnotmadeanyrepresentationinthis

regard to the authorities as the Petitioner is challenging the

constitutionalvalidityoftheimpugnedprovisionsofthesaidAct,

therefore,thereisnorequirementofanykindofrepresentationto

bemadetotheauthorities.

(8) GROUNDS

a) It is submitted that, this Writ Petition furnishes a typical

instanceofawidespreadmaladywhichhasinfestedthelegislative

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system in India, the tendencyof the legislatureofnot exercising

legislativerestraintandcrossing their limitsbyencroaching into

the judicial domain, contrary to the broad separation of powers

envisagedunderourConstitution.

b) CompositionoftheAuthorityunderthepreRSTregime:-

The advance ruling in India is rendered by an Authority

constituted specifically for this purpose known as the Authority

forAdvanceRulings.ItconsistsofaChairmanandtwoMembers.

TheChairmanisaretiredJudgeoftheSupremeCourt.Oneofthe

MemberstobeappointedtobeamemberoftheCBDT,whomay

be referred to as theRevenueMember.TheotherMember is an

officer of the Indian Legal Service, who is qualified to be an

Additional Secretary to the Government of India and may be

referred to as the Law member. The salaries and allowances

payable to, and the terms and conditions of service of the

Membershavebeenprescribedby theGovernmentof India.The

Constitution of the Authority is such that it functions as an

independentquasi-judicialbodydeemedtobeaCivilCourtforthe

purposeofSection195oftheCodeofCriminalProcedure,1973.

c) It is submitted that, as mentioned hereinabove earlier

before the GST regime, the authority of Advance Ruling was

headed by a Judicialmemberwhowas a retired SupremeCourt

Judge but subsequently after the enactment of the biggest tax

reform GST, the Respondents have eliminated judicial member

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from the constitutionof theAAR andAAAR. It is also submitted

thatasper the legislationunder theAct thedecisionofAARand

AAARisbindingontheapplicant,ontheconcernedofficerorthe

jurisdictionalofficer in respectof the applicant in respectof the

transaction, therefore, the authority is a body acting in judicial

capacity. Therefore, the authority is a body exercising judicial

powerand isaTribunalwithin themeaningof theexpression in

articles 136 and 227 of the Constitution.However, as there is a

totalabsenceofajudicialmemberintheconstitutionofAARand

AAAR, the entire constitution of AAR and AAAR is “Coram non

judice”. Hence a legal proceeding before the AAR and AAAR is

outsidethepresenceofa judge(withouta judge),withimproper

venue, or without jurisdiction, therefore, any adjudication and

judgmentpassedbytheAARandAAARwhichhasnoauthorityto

adjudication under the Act which is clearly in violation of the

Article 14 and 50 of the Constitution of India and would be

“Coram non Judice” and a nullity. It is further submitted that in

termsofsection96oftheCGSTandRGSTAct,theParliamenthas

abdicated its authority by empowering the Central Government

andStateGovernmenttoframeRules.Thisamountstodelegation

of essential judicial functions that is unconstitutional. This also

amountstothegrantingofanuncanalisedpowertotheexecutive

tocontrolvitalbodiesthatperform,inessence,judicialfunctions.

On this ground, s 96 of the CGSTAct, 2017 andRGSTAct, 2017

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alongwith rulesmadepertaining to these sections deserve tobe

struck down on the ground of Article 14 for arbitrariness and

Article50oftheConstitutionofIndia.

d) It is submitted that, thepresentCGSTAct, 2017andRGST

Act,2017andrulesthereunderinsofarasitamendsthestructure

and re-organization of AAR and AAAR is unconstitutional and

violative of the basic structure of the Constitution. Absence of

Judicial member has led tomockery of principles enunciated in

thebasicstructureofconstitution.Theimpugnedprovisionsand

the impugnedRules, 2017violate the principlesof separationof

powers which is not only part of basic structure but also an

elementary component of the rule of law. That in Kesavananda

Bharativ.StateofKerala,AIR1973SC1461andinMinervaMills

Ltd.v.UnionofIndia,(1980)3SCC625,largerbenchesofHon’ble

SupremeCourthaveheld,interalia,thatanindependentjudiciary

and it'spowerof judicial reviewareamong thebasic featuresof

theConstitution.

e) TheHon’ble SupremeCourt speaking throughConstitution

BenchinS.P.SampathKumarv.UnionofIndia,(1987)1SCC124

atpara7,hasheldthat,

“It can no longer be disputed that total insulation of thejudiciary fromall formsof interference fromtheco-ordinatebranchesoftheGovernmentisabasicessentialfeatureoftheConstitution, the same independence from possibility ofExecutive pressure or influencemust also be ensured to theChairman,viceChairmanandMembersoftheAdministrative

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Tribunals... The Constitution makers have made anxiousprovision to secure total independence of the judiciary fromexecutivepressureorinfluence.”

That the constitutional guarantee of an independent judicial

branchandtheconstitutionalschemeofseparationofpowers

canbeeasilyandseriouslyundermined,ifthelegislatureswere

toentrusttheTribunalswithMembersnotbeingMembersofthe

‘Judicialservice’oftheState,astheyarenotentitledtoprotection

similartotheconstitutionalprotectionaffordedtotheCourts.

f) That if the constitutional Scheme and intent are to be

preserved, it must be held that the ‘total insulation of the

judiciary’referredtointhecaseofS.P.SampathKumarv.Union

ofIndia,(1987)1SCC124isnotjustforthe‘judiciary’comprising

of Judges appointed to the regular Courts. The ‘judiciary’ in this

context must be understood as taking within its fold, all courts

and Tribunals and other adjudicatory bodies, whatever be the

labelassignedtothem.Theindependenceandimpartialitywhich

areessential for theproperexerciseofthe judicialpower,are to

besecurednotonlyfortheCourtsbutalsoforTribunalsandtheir

members,who,thoughtheydonotbelongtothe‘JudicialService’

are entrusted with judicial powers. Any other view would

effectively eviscerate the constitutional guarantee of an

independentJudicialBranch.

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g) It is submitted that, the safeguards which ensure

independence and impartiality are not for promoting personal

prestigeof the functionarybut forpreservingandprotecting the

rightsofthecitizensandotherswhoaresubjecttothejurisdiction

oftheTribunal,andforensuringthatsuchTribunalswillbeable

tocommandtheconfidenceofthepublic.

h) The Hon’ble Supreme Court had laid down that when

judicialpowersaretransferredfromtheCourtstoTribunals, the

standard of the Tribunals should approximately be the same as

thatoftheCourts.Theimpugnedprovisionsandrulesrelatingto

theappointmentoftheMembersareinviolationofthisprinciple

laid downby theHon’ble SupremeCourt. It is shocking that the

impugned Provisions and Rules of 2017 do not contain any

provision for appointmentof JudicialMembers toAARorAAAR,

which is directly contrary to various decisions of the Hon’ble

SupremeCourtandHighCourtsinIndia.

i) Itissubmittedthat,Article50oftheConstitutionispartof

the basic structure of the Constitution, and is one example of a

specific constitutionalprovisionembodying thebasic featuresof

separation of powers and rule of law. The Impugned provisions

directlyencroachintothesebasicfeaturesandderogatefromthe

samebyvestingunbridledpowersintheExecutiveandthesame

is in complete breach of Article 50 which emphasizes that the

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Stateshalltakestepstoseparatethejudiciaryfromtheexecutive

inthepublicservicesoftheState.

j) InabsenceofjudicialmemberinAARandAAAR,itwilllead

to executive takingpowerof judiciary andexecutivewhoenjoys

the office to the pleasure of government. There has been

significant number of decisions against the tax department

constitutingTechnicalandJudicialMemberunderpreGSTregime,

it will now be apprehensive to pass orders against the relevant

ministry. Ironically, it vitiates the very power of judiciary by

making one judge in his own cause “Nemo judex in causa sua”.

Thus under the impugned Provisions and Rules, the

administrativeassistanceandsupporttoallthetribunalsistobe

provided by the parentministry. This is directly contrary to the

guidelinesprescribedbytheHon’bleSupremeCourtinthecaseof

R.Gandhi(supra)andColumbiaSportswearCo.(supra).

(9) DELAY, IF ANY, IN FILING THE PETITION AND

EXPLANATIONTHEREOF

SincevalidityofprovisionsofCGSTActandRGSTActwithrules

made thereunder is assailed by way of this petition, there does

notarisetheissueofdelay.

(10)RELIEFSPRAYEDFOR

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10. It is thereforehumblyprayed that thisPetitionmaykindly

beallowedbyissuingappropriatewrit,orderordirections:-

(a) Declaring Chapter XVII of the Central Goods and

ServicesTax(RGST)Act,2017moreparticularlySection96

which relate to ‘Authority for Advance Ruling (AAR) and

Section99whichrelateto‘AppellateAuthorityforAdvance

Ruling (AAAR)as ultra vires of Article 14 and 50 of the

ConstitutionofIndia;

(b) Declaring Chapter XVII of the Rajasthan Goods and

Services Tax (RGST) Act, 2017 more particularly Sections

96whichrelateto‘AuthorityforAdvanceRuling(AAR)’and

Section99whichrelateto‘AppellateAuthorityforAdvance

Ruling (AAAR)’ as ultra vires of Article 14 and 50 of the

ConstitutionofIndia;

(c) Declaring Chapter XII of the Central Goods and

ServicesTax(CGST)Rules,2017moreparticularlyRule103

which relate to the “Qualification and Appointment of

membersoftheAuthorityforAdvanceRuling”asultravires

ofArticle14and50oftheConstitutionofIndia;

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(d) Quashingandset-asidethe NotificationNo.9/2017–

CentralTaxdated28.06.2017 in termsof s. 96and s.99of

theCentralGoodsandServicesTaxAct,2017;

(e) Quashing and setting-aside the Notification

No.9/2017 – State Tax dated 29.06.2017 in terms of s. 96

ands.99oftheRajasthanGoodsandServicesTaxAct,2017;

(h) Granting any other relief or reliefs in the facts and

circumstancesofthepresentcaseasmaybedeemfitbythis

Hon’bleCourt;

(11) INTERIMORDER,IFPRAYEDFOR

11. That during the pendency and disposal of the present

petition,therespondentsmaybedirected

(a) Operation of the Chapter XVII of the Central Goods

and Services Tax (CGST) Act, 2017 more particularly

Section 96 which relate to ‘Authority for Advance Ruling

(AAR)’andSection99whichrelate to ‘AppellateAuthority

for Advance Ruling (AAAR)’ and Chapter XVII of the

Rajasthan Goods and Services Tax (RGST) Act, 2017more

particularly Sections 96 which relate to ‘Authority for

Advance Ruling (AAR)’ and Section 99 which relate to

‘Appellate Authority for Advance Ruling (AAAR)’ and

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Chapter XII of the Central Goods and Services Tax (CGST)

Rules,2017moreparticularlyRule103whichrelatetothe

“QualificationandappointmentofmembersoftheAuthority

forAdvanceRuling”maybestayed

(12)CAVEAT

12. ThatthePetitionerhascometoknowthataCaveatatlarge

on behalf of the Union of India, Chief Commissioner of CGST &

Commissioner of CGST was filed before this Hon’ble Court on

07.10.2017. It appears that the said caveat has come to expire.

ThePetitionerhasnoinformationaboutfilingofanysubsequent

caveat extending/renewing the aforesaid caveat dated

07.10.2017.

HUMBLEPETITIONERTHROUGHHISCOUNSEL

(SHARADKOTHARI/LALITPAREEK)ADVOCATES

NOTES:-

1. No such PIL agitating the issues enumerated herein has previously been submitted before this Hon'ble Court or before any other Court in India. 2. P.F. Notices and extra copies will be submitted within the prescribed time. 3. This Petition has been typed by my private steno in my office.

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4. Pie papers were not readily available hence this Petition has been typed on these papers. 5. Vires has not been challenged in this case. 6. Email ID of undersigned counsel : [email protected]


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RAJASTHANATJODHPUR

D.B . C IVILWRIT PETITION(PIL) NO.___/2018

Petitioner:-AbhishekChopra

VERSUSRespondents:-UnionOfIndia&others

AFFIDAVITINSUPPORTOFPETITION

I,AbhishekChopraS/oShriRajeshChopraAgedabout33

years, R/o Pali Marwar do hereby solemnly state on oath as

under:-

1. That I am the petitioner in the presentwrit petition

and amwell conversantwiththefactsandcircumstancesofthe

case.

2.That the present Petition has been drafted bymy counsel

undermyinstructions.

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3. ThatfactsmentionedinthePetitionarecorrecttothe

bestofmyknowledge.

4. Thatlegalsubmissionsmentionedhereinarebelieved

tobecorrectonthebasisoflegaladvicegivenbymycounsel.

DEPONENT

VERIFICATION

I, the above nameddeponent dohereby solemnly stateon

oaththatthefactsmentionedintheParaNo.1to4ofthisaffidavit

are true to my personal knowledge. No part of it is false and

nothinghasbeenconcealed.SOHELPMEGOD.

DEPONENT

DATE:-

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RAJASTHANATJODHPUR



VERSUS

Respondents:-UnionOfIndia&others

AFFIDAVITINSUPPORTOFDOCUMENTS

I, Abhishek Chopra S/o Shri Rajesh Chopra Aged about 33


under:-

1. That I am the petitioner in the presentwrit petition

and amwellconversantwith the factsandcircumstancesof the

case.

2.ThatAnnexure-1toAnnexure-5aretrueandcorrectcopies

oftheiroriginals.

DEPONENT

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VERIFICATION

I, the above nameddeponent dohereby solemnly stateon

oaththatthefactsmentionedintheParaNo.1&2ofthisaffidavit

are true to my personal knowledge. No part of it is false and

nothinghasbeenconcealed.SOHELPMEGOD.

DEPONENT

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RAJASTHANATJODHPUR

D.B. CIVILWRITPETITION(PIL)NO.___/2018


VERSUS

Respondents:-UnionofIndia&others

ADDITIONALAFFIDAVIT

I,AbhishekChopra S/oShriRajeshChopraAgedabout33


under:-

1. That I am the Petitioner Society and well

conversantwiththefactsandcircumstancesofthecase.

2. ThatasperHighCourtRules,Iamsubmittingmy

addressproof,whichmaykindlybetreatedaspart&parcel

ofthisWritPetition.

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3. That the address mentioned in the Petition and

theaddressmentionedhereinareofthesameplace.

DEPONENT

VERIFICATION

I, theabovenameddeponentdoherebysolemnly

stateonoaththatthefactsmentionedintheParaNo.1to3

ofthisaffidavitaretruetomypersonalknowledge.Nopartof

itisfalseandnothinghasbeenconcealed.SOHELPMEGOD.

DEPONENT

DATE:-

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RAJASTHANATJODHPUR


Petitioner VERSUS RespondentsAbhishekChopra UnionOfIndia&others

I N D E X S.NO. PARTICULARS PAGENO.01. WritPetition(PIL) 01-3502. AffidavitinsupportofPetition 36-37 03. AffidavitinsupportofDocuments 38-3904. AdditionalAffidavit 40-41 DOCUMENTS:Annex.1 CopyofChapterXVIIofCentralGoods

andServicesTax(CGST)Act,2017. Annex.2 CopyofChapterXVIItheRajasthanGoods

andServicesTax(RGST)Act,2017. Annex.3 CopyChapterXIIoftheCentralGoods

andServicesTax(RGST)Rules,2017 Annex.6 CopyoftheNotificationNo.9/2017–

CentralTaxdated28.06.2017Annex.7CopyoftheNotificationNo.9/2017–

StateTaxdated29.06.2017____________________________________________________________________________

(SHARADKOTHARI/LALITPAREEK)

ADVOCATES

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RAJASTHANATJODHPUR


Petitioner VERSUS RespondentsAbhishekChopra UnionofIndia&others

S Y N O P S I S

Dates Particulars Bywayof instantPILvalidityofChapterXVIIof

the Central Goods and Services Tax (CGST)Act,2017,moreparticularly Section96which relateto ‘Authority for Advance Ruling (AAR) andSection 99 which relate to ‘Appellate AuthorityforAdvanceRuling(AAAR)’;ChapterXVIIoftheRajasthan Goods and Services Tax (RGST) Act,2017moreparticularlySections96whichrelateto ‘Authority for Advance Ruling (AAR)’ andSection 99 which relate to ‘Appellate Authorityfor Advance Ruling (AAAR)’; Chapter XII of theCentral Goods and Services Tax (CGST) Rules,2017moreparticularlyRule103whichrelatetothe “Qualification and appointment ofmembersof the Authority for Advance Ruling”; has beenassailed as the same seeks to constitute theauthority of Advance Ruling and AppellateAuthority of Advance Ruling in violation ofArticle 14 & 50 of Constitution of India and incontravention of the law laid down by theHon’bleSupremeCourtinthecasesofColumbiaSportswear Company vs. Director of Income-tax,Bangalore) reported in (2012)11SCC224asalsoUnionofIndiavs.R.Gandhireportedin(2010)11SCC1.Hencethepresentpetition.
