GST UPDATE ON VALIDITY OF THE CONSTITUTION OF AAR & AAAR

The Authority for Advance Ruling under GST is constituted in terms of provisions contained in section 96 of the CGST Act, 2017 read with Rule 103 of the CGST Rules, 2017 wherein the government appoints officers not below the rank of Joint Commissioner as member of the Authority for Advance Ruling (AAR). Similarly, the Appellate Authority for Advance Ruling (AAAR) is constituted under section 99 of the CGST Act, 2017. It is observed that the members of AAR and AAAR are the government officers, commonly called as technical members. The constitution of AAR and AAAR is such that it comprises of only technical members with no judicial member. In the absence of judicial member, it is commonly observed that the decisions pronounced are pro-revenue. Moreover, the constitution of appellate authority entails presence of judicial member which is absent in AAAR constituted under GST Law.

It is worth noting that the vires of constitution of AAR and AAAR under GST has been challenged before the Hon’ble Rajasthan High Court in the case of CHAMBAL FERTILISERS AND CHEMICALS LTD. and the Hon’ble High Court has admitted the question framed by the applicant as to whether constitution of AAR/AAAR under GST Law is arbitrary and unconstitutional. It has been pleaded that according to section 105 of the CGST Act,  the AAR/AAAR would have the powers of civil court under the Code of Civil Procedure in relation to specified items and proceedings before them would be deemed to be judicial proceedings. Reliance has been placed on the decision given by the Constitution Bench of the Supreme Court in the case of UNION OF INDIA VERSUS R. GANDHI AND OTHERS-(2010) 11 SCC 1 wherein it was held that composition of an authority/Tribunal ought to have a member from judicial background as they have been empowered to discharge judicial functions.

The final verdict of the Hon’ble Rajasthan High Court is yet to come but if the constitution of AAR and AAAR is declared as arbitrary and unconstitutional, then the fate of numerous decisions rendered till date and their binding nature would be a big question that would remain unanswered.

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