Ministry of Finance on 14th September, 2023 has finally notified 31 benches of GSTAT situated all over India. So we can say finally GSTAT is a reality and has seen its Day.
In this article, we will discuss everything about GSTAT for its Administration side, including number & constitution of benches, appointment, qualification, Removal of President and Members, Tenure of President & Members etc.
Area covered in the Article
A. Mechanism of Hearing & Constitution of GSTAT (Section 109)
As per Section 109, two kinds of Benches will be constituted by Government by Notification
a. Principal Bench at New Delhi (consists of President, Judicial Member, a Technical Member (Centre) and a Technical Member (State). (Yet to be notified).
b. On the request of States, State Benches (there can be more than one bench in a State) (consists of Two Judicial Members, One Technical Member (Centre) and One Technical Member (State). (31 benches have been notified by the Ministry of Finance on 14.09.2023).
B. Administrative Functioning of the Benches (Section 109)
(a) Both Principal and State Benches will hear appeal against the order passed by the Appellate Authority (constituted under Section 107 commonly known as Commissioner Appeal or Additional/Joint Commissioner (Appeal)) or the Revisional Authority (constituted under Section 108). However, disputes related to Place of Supply will be heard by Principal Bench only.
(b) President will have power to distribute business of the Appellate Tribunal among the Benches and may transfer cases from one Bench to another.
(c) The senior-most Judicial Member within the State Benches, as may be notified, shall act as the Vice-President for such State Benches and shall exercise such powers of the President as may be prescribed, but for all other purposes be considered as a Member.
(d) If amount of Tax, ITC, Fine, Fee and Penalty is less than Rs. 50 Lakhs and does not involve question of Law, appeals may be heard by Single Member bench with the approval of President otherwise in all cases, appeals will be heard by two member benches (one being Judicial and other being Technical).
(e) In case there is difference of opinion between members, President will refer the matter of difference to
i. In case Original Appeal is Heard by State Bench: To another member in the same
state, if not available, to a member in another State.
ii. In case Original appeal is being heard by Principal Bench: To another member from
Principal Bench, if not available, to another member of State Bench.
Decision will be taking on the basis of Majority including original members.
(f) The Government may, in consultation with the President, for the administrative efficiency, transfer Members from one Bench to another Bench, however Technical Member (State) of State bench can be transferred in the same State only in consultation with State Government.
C. Summary of Qualification, Appointment, Removal and Suspension of President and Members.
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D. Legal Language of Section 109 & 110.
Section 109. (1) The Government shall, on the recommendations of the Council, by notification, establish with effect from such date as may be specified therein, an Appellate Tribunal known as the Goods and Services Tax Appellate Tribunal for hearing appeals against the orders passed by the Appellate Authority or the Revisional Authority.
(2) The jurisdiction, powers and authority conferred on the Appellate Tribunal shall be exercised by the Principal Bench and the State Benches constituted under sub-section (3) and sub-section (4).
(3) The Government shall, by notification, constitute a Principal Bench of the Appellate Tribunal at New Delhi which shall consist of the President, a Judicial Member, a Technical Member (Centre) and a Technical Member (State).
(4) On the request of the State, the Government may, by notification, constitute such number of State Benches at such places and with such jurisdiction as may be recommended by the Council, which shall consist of two Judicial Members, a Technical Member (Centre) and a Technical Member (State).
(5) The Principal Bench and the State Bench shall hear appeals against the orders passed by the Appellate Authority or the Revisional Authority:
Provided that the cases in which any one of the issues involved relates to the place of supply, shall be heard only by the Principal Bench.
(6) The President shall, from time to time, by a general or special order, distribute the business of the Appellate Tribunal among the Benches and may transfer cases from one Bench to another.
(7) The senior-most Judicial Member within the State Benches, as may be notified, shall act as the Vice-President for such State Benches and shall exercise such powers of the President as may be prescribed, but for all other purposes be considered as a Member.
(8) Appeals, where the tax or input tax credit involved or the amount of fine, fee or penalty determined in any order appealed against, does not exceed fifty lakh rupees and which does not involve any question of law may, with the approval of the President, and subject to such conditions as may be prescribed on the recommendations of the Council, be heard by a single Member, and in all other cases, shall be heard together by one Judicial Member and one Technical Member.
(9) If, after hearing the case, the Members differ in their opinion on any point or points, such Member shall state the point or points on which they differ, and the President shall refer such case for hearing,—
(a) where the appeal was originally heard by Members of a State Bench, to another Member of a State Bench within the State or, where no such other State Bench is available within the State, to a Member of a State Bench in another State;
(b) where the appeal was originally heard by Members of the Principal Bench, to another Member from the Principal Bench or, where no such other Member is available, to a Member of any State Bench, and such point or points shall be decided according to the majority opinion including the opinion of the Members who first heard the case.
(10) The Government may, in consultation with the President, for the administrative efficiency, transfer Members from one Bench to another Bench:
Provided that a Technical Member (State) of a State Bench may be transferred to a State Bench only of the same State in which he was originally appointed, in consultation with the State Government.
(11) 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.".
Section 110:
(1) A person shall not be qualified for appointment as—
(a) the President, unless he has been a Judge of the Supreme Court or is or has been the Chief Justice of a High Court;
(b) a Judicial Member, unless he—
(i) has been a Judge of the High Court; or
(ii) has, for a combined period of ten years, been a District Judge or an Additional District Judge;
(c) a Technical Member (Centre), unless he is or has been a member of the Indian Revenue (Customs and Indirect Taxes) Service, Group A, or of the All India Service with at least three years of experience in the administration of an existing law or goods and services tax in the Central Government, and has completed at least twenty-five years of service in Group A;
(d) a Technical Member (State), unless he is or has been an officer of the State Government or an officer of All India Service, not below the rank of Additional Commissioner of Value Added Tax or the State goods and services tax or such rank, not lower than that of the First Appellate Authority, as may be notified by the concerned State Government, on the recommendations of the Council and has completed twenty-five years of service in Group A, or equivalent, with at least three years of experience in the administration of an existing law or the goods and services tax or in the field of finance and taxation in the State Government:
Provided that the State Government may, on the recommendations of the Council, by notification, relax the requirement of completion of twenty-five years of service in Group A, or equivalent, in respect of officers of such State where no person has completed twenty-five years of service in Group A, or equivalent, but has completed twenty-five years of service in the Government, subject to such conditions, and till such period, as may be specified in the notification.
(2) The President, Judicial Member, Technical Member (Centre) and Technical Member (State) shall be appointed or re-appointed by the Government on the recommendations of a Search-cum-Selection Committee constituted under sub-section (4):
Provided that in the event of the occurrence of any vacancy in the office of the President by reason of his death, resignation or otherwise, the Judicial Member or, in his absence, the senior-most Technical Member of the PrincipaI Bench shall act as the President until the date on which a new President, appointed in accordance with the provisions of this Act to fill such vacancy, enters upon his office:
Provided further that where the President is unable to discharge his functions owing to absence, illness or any other cause, the Judicial Member or, in his absence, the senior-most Technical Member of the Principal Bench, shall discharge the functions of the President until the date on which the President resumes his duties.
(3) While making selection for Technical Member (State) of a State Bench, first preference shall be given to officers who have worked in the State Government of the State to which the jurisdiction of the Bench extends.
(4) (a) The Search-cum-Selection Committee for Technical Member (State) of a State Bench shall consist of the following members, namely:—
(i) the Chief Justice of the High Court in whose jurisdiction the State Bench is located, to be the Chairperson of the Committee;
(ii) the senior-most Judicial Member in the State, and where no Judicial Member is available, a retired Judge of the High Court in whose jurisdiction the State Bench is located, as may be nominated by the Chief Justice of such High Court;
(iii) Chief Secretary of the State in which the State Bench is located;
(iv) one Additional Chief Secretary or Principal Secretary or Secretary of the State in which the State Bench is located, as may be nominated by such State Government, not in-charge of the Department responsible for administration of State tax; and
(v) Additional Chief Secretary or Principal Secretary or Secretary of the Department responsible for administration of State tax, of the State in which the State Bench is located — Member Secretary; and
(b) the Search-cum-Selection Committee for all other cases shall consist of the following members, namely:—
(i) the Chief Justice of India or a Judge of Supreme Court nominated by him, to be the Chairperson of the Committee;
(ii) Secretary of the Central Government nominated by the Cabinet Secretary — Member;
(iii) Chief Secretary of a State to be nominated by the Council — Member;
(iv) one Member, who—
A) in case of appointment of a President of a Tribunal, shall be the outgoing President of the Tribunal; or
(B) in case of appointment of a Member of a Tribunal, shall be the sitting President of the Tribunal; or
(C) in case of the President of the Tribunal seeking re-appointment or where the outgoing President is unavailable or the removal of the President is being considered, shall be a retired Judge of the Supreme Court or a retired Chief Justice of a High Court nominated by the Chief Justice of India; and
(v) Secretary of the Department of Revenue in the Ministry of Finance of the Central Government — Member Secretary.
(5) The Chairperson shall have the casting vote and the Member Secretary shall not have a vote.
(6) Notwithstanding anything contained in any judgment, order, or decree of any court or any law for the time being in force, the Committee shall recommend a panel of two names for appointment or re-appointment to the post of the President or a Member, as the case may be.
(7) No appointment or re-appointment of the Members of the Appellate Tribunal shall be invalid merely by reason of any vacancy or defect in the constitution of the Search-cum-Selection Committee.
(8) Notwithstanding anything contained in any judgment, order, or decree of any court or any law for the time being in force, the salary of the President and the Members of the Appellate Tribunal shall be such as may be prescribed and their allowances and other terms and conditions of service shall be the same as applicable to Central Government officers carrying the same pay:
Provided that neither the salary and allowances nor other terms and conditions of service of the President of Members of the Appellate Tribunal shall be varied to their disadvantage after their appointment:
Provided further that, if the President or Member takes a house on rent, he may be reimbursed a house rent higher than the house rent allowance as are admissible to a Central Government officer holding the post carrying the same pay, subject to such limitations and conditions as may be prescribed.
(9) Notwithstanding anything contained in any judgment, order, or decree of any court or any law for the time being in force, the President of the Appellate Tribunal shall hold office for a term of four years from the date on which he enters upon his office, or until he attains the age of sixty-seven years, whichever is earlier and shall be eligible for re-appointment for a period not exceeding two years.
(10) Notwithstanding anything contained in any judgment, order, or decree of any court or any law for the time being in force, the Judicial Member, Technical Member (Centre) or Technical Member (State) of the Appellate Tribunal shall hold office for a term of four years from the date on which he enters upon his office, or until he attains the age of sixty-five years, whichever is earlier and shall be eligible for re-appointment for a period not exceeding two years.
(11) The President or any Member may, by notice in writing under his hand addressed to the Government, resign from his office:
Provided that the President or Member shall continue to hold office until the expiry of three months from the date of receipt of such notice by the Government or until a person duly appointed as his successor enters upon his office or until the expiry of his term of office, whichever is the earliest.
(12) The Government may, on the recommendations of the Search-cum-Selection Committee, remove from the office President or a Member, who—
(a) has been adjudged an insolvent; or
(b) has been convicted of an offence which involves moral turpitude; or
(c) has become physically or mentally incapable of acting as such President or Member; or
(d) has acquired such financial or other interest as is likely to affect prejudicially his functions as such President or Member; or
(e) has so abused his position as to render his continuance in office prejudicial to the public interest:
Provided that the President or the Member shall not be removed on any of the grounds specified in clauses (d) and (e), unless he has been informed of the charges against him and has been given an opportunity of being heard.
(13) The Government, on the recommendations of the Search-cum-Selection Committee, may suspend from office, the President or a Judicial or Technical Member in respect of whom proceedings for removal have been initiated under sub-section (12).
(14) Subject to the provisions of article 220 of the Constitution, the President or other Members, on ceasing to hold their office, shall not be eligible to appear, act or plead before the Principal Bench or the State Bench in which he was the President or, as the case may be, a Member.
Happy Reading !!! Happy Learning
Disclaimer: We have taken due care to the best of our knowledge while explaining the provisions surrounding the issue purely for informational/academic purpose. It should not be considered as professional advice or consultancy to be relied upon. Further, Fab Gyan and its Team will not be responsible for any mistake.
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