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ORDINARY ORIGINAL CIVIL JURISDICTION
WRIT PETITION NO.2031 OF 2018
Dharmendra M. Jani
Aged 48 years
606-Park Vista, Park Darshan CHS Ltd.
Lallubhai Park, Andheri (West), Mumbai – 400 058. … Petitioner vs.
JUDGMENT
1. The Union of India, through Secretary, Ministry of Finance (Dept. of Revenue) North Block, New Delhi – 1.
2. Central Board of Indirect Taxes and Customs Department of Revenue, Ministry of Finance, North Block New Delhi – 110 001.
3. Goods and Services Tax Council through Additional Secretary, 5 th Floor, Tower II, Jeevan Bharti Building, Janpath Road, Connaught Place
4. Principal Commissioner of Goods and Service Tax, Mumbai, New Central Excise Building, M.K. Road, Opp. Churchgate Station Mumbai – 400 020.
5. State of Maharashtra, through Secretary, Finance Department, Mantralaya, Madam Cama Road, Hutatma Rajgur Chowk, Nariman Point, Mumbai – 400 032....Respondents AND WRIT PETITION (L.) NO.639 OF 2020 Priya R. Soparkar 1 of 6 RAJESH SOPARKAR A.T.E. Enterprises Private Limited (formerly known as A.T.E. Marketing Pvt. Ltd.) having its registered office at 43, Dr. V.B. Gandhi Marg, Fort, Mumbai – 400 023. through Shri Nikesh Jain, the Chief Financial Officer and Authorized Signatory. … Petitioner Vs.
1. The Union of India, through Secretary, Ministry of Finance (Dept. of Revenue) No. 137, North Block, New Delhi – 1.
2. State of Maharashtra, through Secretary, Finance Department, Mantralaya, Madam Cama Road, Hutatma Rajgur Chowk Nariman Point, Mumbai – 400 032.
3. Central Board of Indirect Taxes and Customs through Chairman, Department of Revenue, Ministry of Finance, North Block
4. Goods and Services Tax Council through Additional Secretary, 5 th Floor, Tower II, Jeevan Bharti Building, Janpath Road, Connaught Place New Delhi – 110 001....Respondents ----- Mr. Bharat Raichandani with Mr. Rishabh Jain i/b.UBR Legal for Petitioner in WP No.2031/2018. Mr. Abhishek Rastogi with Mr. Pratyushprawa Saha, Mr. Mahir Chablani, Ms. Kanika Sharma and Mr. Marmik Kamdar i/b. Khaitan & Co. for Petitioner in WP(L.) No.639/2020. Mr. Anil C. Singh, ASG with Mr. Pradeep Jetly, Senior Advocate, Mr. J.B. Mishra and Mr. Aditya Thakkar and Mr. Dhananjay B. Deshmukh for Respondent/UOI in both the Writ Petitions. Ms. Jyoti Chavan, AGP for State in WP No.2031/2018. Mr. Dushyant Kumar, AGP for State in WP(L) No.639/2020. ----- Priya R. Soparkar 2 of 6 CORAM: SUNIL B. SHUKRE AND ABHAY AHUJA, JJ. DATE: 06 JUNE, 2023.
FINAL JUDGMENT:-
1. The principal challenge in both these petitions is to the vires of section 13(8)(b) and section 8(2) of the Integrated Goods and Services Tax Act, 2017 (“IGST” for short).
2. On 9th June, 2021 Hon’ble Shri Justice Ujjal Bhuyan in paragraphs No.65 and 66 of his Judgment and Order in Writ Petition No.2031 of 2018 held as under:-
3. Similar view holding section 13(8)(b) of the IGST Act to be ultravires and unconstitutional had been taken in Writ Petition (L) No.639 of
2020. Priya R. Soparkar 3 of 6
4. One of us (Abhay Ahuja, J.) had held section 13(8)(b) as well as section 8(2) of the IGST Act as constitutionally valid observing in paragraphs No. 119 and 120 of judgment and order (dissenting) dated 16th June, 2021 in Writ Petition No.2031 of 2018 as under:-
5. Similar view was taken by one of us (Abhay Ahuja, J.) holding section 13(8)(b) as well as section 8(2) of the IGST Act as constitutionally valid in Writ Petition (L) No.639 of 2020.
6. In view of the difference of opinion with regard to the constitutionality of Section 13(8)(b) of the IGST Act wherein one of the Hon’ble Judges, Hon’ble Shri. Justice Ujjal Bhuyan had struck down the constitutional validity of the said provision and allowed the petitions and one of us (Abhay Ahuja, J.) had held the said provision to the Priya R. Soparkar 4 of 6 constitutional, on 16th June, 2021, the Division Bench (Hon’ble Shri. Justice Ujjal Bhuyan and Hon’ble Shri. Justice Abhay Ahuja) had directed the Registry to place the matters before The Hon’ble The Chief Justice on the administrative side as per the following order:-
7. Pursuant to the above reference order, the then Hon’ble The Chief Justice had referred these matters for the opinion of the third Judge, our learned brother Hon’ble Shri. Justice G.S.Kulkarni and he has rendered his opinion vide judgment and order dated 18th April, 2023 holding the said provision to be constitutional, observing as under: “ O R D E R
(i) The provisions of Section 13(8)(b) and Section 8(2) of the IGST Act are legal, valid and constitutional, provided that the provisions of Section 13(8)(b) and Section 8(2) are confined in their operation to the Priya R. Soparkar 5 of 6 provisions of IGST Act only and the same cannot be made applicable for levy of tax on services under the CGST and MGST Acts.
(ii) The reference as made to this Court is accordingly answered in the above terms.
114. The office to place the matter before the Division Bench.”
8. Accordingly, the matters have been placed before us pursuant to an administrative order dated 19th May, 2023, of the then Hon’ble The Acting Chief Justice in accordance with the Rules, for pronouncement of the final judgment for disposing of the matters.
9. Considering the views taken by our learned brother Hon’ble Shri. Justice G.S.Kulkarni and one of us (Abhay Ahuja, J.), we hold the provisions of Section 13(8)(b) and Section 8(2) of the IGST to be legal, valid and constitutional.
6. Petitions are accordingly dismissed. There shall be no orders as to costs. (ABHAY AHUJA, J.) (SUNIL B. SHUKRE, J.) Priya R. Soparkar 6 of 6