Recommendations from the GST Council are mandatory for exercising powers under Section 168A; their absence invalidates the Notifications and related Orders-in-Original.

JUDGMENT AND ORDER (ORAL)

Heard, the learned counsels appearing on behalf of the Petitioners in the instant batch of writ petitions. I have also heard Mr. S. C. Keyal, and Dr. B. N. Gogoi, the learned Standing counsels appearing on behalf of the Central Goods and Service Tax (CGST) and Mr. B. Gogoi, the learned Standing counsel appearing on behalf of the Finance and Taxation Department of the Government of Assam (SGST)

PREFACE :

2. In the instant batch of writ petitions, the Petitioners herein have challenged their respective Order-in-Original passed under Section 73(9) of the Central Goods and Service Tax Act, 2017 (for short ‘the Central Act’) as well as Assam Goods and Services Tax Act, 2017 (for short ‘the State Act’) on the ground that the Notification No.9/2023-CT dated 31.03.2023 and the Notification No.56/2023-CT dated 28.12.2023 by which the period for passing of the order under Section 73(10) of the Central Act was extended in exercise of the powers under Section 168A of the Central Act was ultra vires the Central Act. In addition to that, the Petitioners have assailed the imposition under the State Act on the ground that there is no Notification issued under Section 168A of the State Act extending the period for passing order under Section 73(10) of the State Act.

3. The Notification No.09/2023-CT and Notification No.56/2023-CT are challenged on the grounds that the condition precedent for issuance of the Notifications in exercise of powers under Section 168A of the Central Act were not fulfilled. To elaborate, the Notification No.9/2023-CT is challenged on the ground that in absence of force majeure, the Government could not have exercised the power under Section 168A of the Central Act. In respect to the Notification No.56/2023-CT, the challenge is on the ground that the twin conditions for issuance of the Notification i.e. existence of a recommendation of the Goods and Service Tax Council (for short the ‘GST Council’) and due to force majeure were absent.

4. Before further proceeding, it is pertinent herein to mention that during the pendency of these writ petitions, the State of Assam issued a Notification on 06.09.2024 in exercise of the powers under Section 168A of the State Act. Pertinent herein to mention that the said Notification dated 06.09.2024 is a replica to the Notification No.9/2023-CT. Though there is no specific challenge to the said Notification dated 06.09.2024, the learned counsels appearing on behalf of the Petitioners submitted that as during the pendency of the writ petitions, the Notification dated 06.09.2024 was issued, the challenge made to the Notification No.9/2023-CT should also be extended to the Notification dated 06.09.2024 on the ground of there being no existence of force majeure.

5. The Orders-in-Original which are subject matter of challenge in the present batch of writ petitions are appealable under Section 107 of the Central Act. However, it is noticed that the Notification issued under Section 168A of both the Central Act and the State Act cannot be challenged under the Central Act and the State Act. It is also pertinent to observe that it is only in a proceedings under Article 226 of the Constitution, the said Notifications can be challenged. It is also pertinent to note that if the impugned Notifications are held to be ultra vires, the provisions of the Central Act as well as the State Act, the respective Orders-in-Original would be without jurisdiction being barred by period prescribed in Section 73(10) of both the Central Act and the State Act. In addition to the above, it is also apposite to mention that the questions raised in the present proceedings are purely legal questions and as such, this Court finds it relevant to entertain the present batch of writ petitions.

RELEVANT PROVISIONS OF LAW AND ITS INTERPRETATION:

6. To decide the challenge to the impugned notifications, this Court finds it relevant to take note of the Constitutional provision of Article 246A of the Constitut