ARTICLE 279A Archives - Tax Heal

GST council recommendations not in violation of Election Code of Conduct : HC

CA Satbir Singh — Wed, 21 Mar 2018 07:05:33 +0000

HIGH COURT OF GUJARAT

Sandipkumar Kirankumar Sharma

State Election Commission

R. SUBHASH REDDY, CJ
AND VIPUL M. PANCHOLI, J.

WRIT PETITION (PIL) NO. 239 OF 2017

NOVEMBER 15, 2017

Ms. Sneha A. Joshi, Adv. for the Applicant. Kamal B. Trivedi, Adv. General and Ms. Sangita Vishen, Asstt. Govt Pleaderfor the Respondent.

ORDER

R. Subhash Reddy, CJ – This petition is filed by way of Public Interest Litigation with the prayers, which read as under:

“a.		Be pleased to admit this petition.
b.		Your Lordships may be pleased to issue a writ of Mandamus or a writ in nature of mandamus or any other appropriate writ, order or direction directing the respondent no.2 for postponement of the meeting and further if the decisions taken whereof, the same should not be declared publicly till the election is over in the interest of justice.
c.		Your Lordships may be pleased to declare that whatever decision may be taken by the respondent’s especially respondent no.2 GST Council may be declared as null and void and is requires to be quashed and set aside in the interest.
d.		Pending admission, hearing and final disposal of the present petition, this Hon’ble Court may be pleased to issue suitable direction in the interest of justice.
e.		Such and further relief(s) that is just deems fit may be granted.”

2. This petition is filed by impleading the State Election Commission as the 1st respondent, Chairman of the Goods and Services Tax Council as the 2nd respondent and the Secretary, Ministry of Finance as the 3rd respondent. The Goods and Services Tax Council, a body constituted under the provisions of the Constitution of India, held its 23rd meeting at Guwahati on 9th and 10th November, 2017. This petition was filed on 10.11.2017.

3. As much as the meeting was already held on 9th and 10th of November, 2017, the relief sought for in paragraph 13(b) of the petition has become infructuous. In the relief sought for in paragraph 13(c) of the petition, the petitioner prayed to declare the decisions taken by the 2nd respondent Council, as null and void and also to quash the same.

4. Such relief is sought on the ground that, the 1st respondent Election Commission has already notified the Code of Conduct of elections to Gujarat Legislative Assembly to be held on 9th and 14th December, 2017 and Election Code is in operation. It is the case of the petitioner that only as a political strategy, such meeting was conducted in violation of the Code of Conduct. It is alleged that the recommendations made in the 9th and 10th November, 2017 Council meeting are only to appease the voters in the ensuing elections.

5. We have heard Ms. Sneha Joshi, learned counsel for the petitioner and Mr. Kamal B. Trivedi, learned Advocate General appearing with Ms. Sangeeta Vishen, learned Assistant Government Pleader, appearing on advance copy served on the government.

6. As the papers are served on the learned Advocate General, he is present when the matter is called and it is brought to our notice that the Goods and Services Tax Council is an independent body constituted under Article 279A of the Constitution. It is stated that the Goods and Services Tax Council regularly meets to make its recommendations and said recommendations are ultimately to be accepted by the government. It is submitted that as much as the Goods and Services Tax Council is an independent body, which is required to meet periodically, to make its recommendations, in terms of Article 279A of the Constitution of India, it cannot be said that the recommendations made by the Goods and Services Tax Council are in violation of the Code of Conduct. It is submitted that earlier, 22 meetings were already held by the Council and the meeting held on 9th and 10th November, 2017 was the 23rd meeting at Guwahati.

7. By virtue of constitutional amendment, Article 279A is inserted, which empowers the Hon’ble President to constitute a Council to be called the Goods and Services Tax Council. Under Article 279A(4), Goods and Services Tax Council is empowered to make its recommendations to the Union and the States, on taxes, cesses and surcharges etc. As per Article 279A(9), every decision of the Council is to be taken in a meeting, where majority of not less than three fourths of the weighted votes of the members present and voted.

8. The recommendations made by the Council are ultimately to be accepted by the government. Merely because the Council has met and made its recommendations, it cannot be said that such recommendations and steps taken by the Council are in violation of the model Code of Conduct, which is in operation in the State of Gujarat. The Council is a constitutional body and is constituted only for the purpose of making recommendations by holding meetings. When 22 meetings were already held and 23rd meeting was scheduled on 9th and 10th November, 2017 at Guwahati and such recommendations are made for making suggestions to the Union and the States on taxes, cesses and surcharges etc., it cannot be said that same will violate the Code of Conduct, which is in operation in the State of Gujarat.

9. Further, it is also brought to our notice by the learned Advocate General that earlier, when elections were to be held in the States of Uttar Pradesh, Punjab & Haryana etc., a petition by way of Writ Petition (Civil) No.18 of 2017 was filed before the Hon’ble Supreme Court in which, relief was sought to stop the presentation of the Budget, on the eve of elections, alleging that the same will influence the voters. Same was dismissed at the stage of admission by order dated 23rd January 2017. A copy of the order is also produced during the course of hearing. In any event, when the body constituted under the Constitution is required to meet periodically to make its recommendations to the Union and all the States, it cannot be said that such meeting was held and recommendations were made, only to appease the voters in the ensuing election in the State of Gujarat. There is also no basis for making allegations by the petitioner. In that view of the matter, we do not find any merit in this petition and the same is accordingly dismissed at the stage of admission. No order as to costs.

Goods and Services Tax Council Purpose under GST

CA Satbir Singh — Sat, 06 Aug 2016 05:51:02 +0000

Goods and Services Tax Council

( As per Proposed ARTICLE 279A of Constitution)

Time for Constitution of Goods and Services Tax Council

The President shall, within sixty days from the date of commencement of the Constitution (One Hundred and First Amendment) Act, 2016, by order, constitute a Council to be called the Goods and Services Tax Council.

Members of Goods and Services Tax Council

The Goods and Services Tax Council shall consist of the following members, namely:—

(a) the Union Finance Minister…………………… Chairperson;

(b) the Union Minister of State in charge of Revenue or Finance …………….. Member;

(c) the Minister in charge of Finance or Taxation or any other Minister nominated by each State Government……………….. Members.

The Members of the Goods and Services Tax Council referred to in sub-clause (c) shall, as soon as may be, choose one amongst themselves to be the Vice-Chairperson of the Council for such period as they may decide.

Quorum of Goods and Services Tax Council

One half of the total number of Members of the Goods and Services Tax Council shall constitute the quorum at its meetings.

Decision making power of Goods and Services Tax Council

Every decision of the Goods and Services Tax Council shall be taken at a meeting, by a majority of not less than three-fourths of the weighted votes of the members present and voting, in accordance with the following principles, namely:—

(a) the vote of the Central Government shall have a weightage of one third of the total votes cast, and (b) the votes of all the State Governments taken together shall have a weightage of two-thirds of the total votes cast, in that meeting.

Purpose of Goods and Services Tax Council

The Goods and Services Tax Council shall make recommendations to the Union and the States on—

(a) the taxes, cesses and surcharges levied by the Union, the States and the local bodies which may be subsumed in the goods and services tax;

(b) the goods and services that may be subjected to, or exempted from the goods and services tax; (c) model Goods and Services Tax Laws, principles of levy, apportionment of Goods and Services Tax levied on supplies in the course of Inter-State trade or commerce under article 269A and the principles that govern the place of supply;

(d) the threshold limit of turnover below which goods and services may be exempted from goods and services tax;

(e) the rates including floor rates with bands of goods and services tax;

(f) any special rate or rates for a specified period, to raise additional resources during any natural calamity or disaster;

(g) special provision with respect to the States of Arunachal Pradesh, Assam, Jammu and Kashmir, Manipur, Meghalaya, Mizoram, Nagaland, Sikkim, Tripura, Himachal Pradesh and Uttarakhand; and

(h) any other matter relating to the goods and services tax, as the Council may decide

The Goods and Services Tax Council shall recommend the date on which the goods and services tax be levied on petroleum crude, high speed diesel, motor spirit (commonly known as petrol), natural gas and aviation turbine fuel.

Goods and Services Tax Council to Establish Dispute Resolution Mechanism

The Goods and Services Tax Council shall establish a mechanism to adjudicate any dispute—

(a) between the Government of India and one or more States; or

(b) between the Government of India and any State or States on one side and one or more other States on the other side; or

Goods and Services Tax Council to consider harmonised structure

The Goods and Services Tax Council shall be guided by the need for a harmonised structure of goods and services tax and for the development of a harmonised national market for goods and services.

Procedure of Goods and Services Tax Council

The Goods and Services Tax Council shall determine the procedure in the performance of its functions.

Proceeding of Goods and Services Tax Council :-

No act or proceedings of the Goods and Services Tax Council shall be invalid merely by reason of—

(a) any vacancy in, or any defect in, the constitution of the Council; or

(b) any defect in the appointment of a person as a member of the Council; or

Related Post

Article 279A Goods and Services Tax Council -after Constitution 101st Amendment act 2016

CA Satbir Singh — Fri, 05 Aug 2016 04:13:19 +0000

Article 279A of Constitution of India 1950

[ After article 279 , new Article 279A of Constitution of India Inserted by the Constitution (One Hundred and First Amendment) Act, 2016, w.e.f. 12-9-2016. ]

Article 279A : Goods and Services Tax Council.

279A. (1) The President shall, within sixty days from the date of commencement of the Constitution (One Hundred and First Amendment) Act, 2016, by order, constitute a Council to be called the Goods and Services Tax Council.

(2) The Goods and Services Tax Council shall consist of the following members, namely:—

(a)	the Union Finance Minister	…………………… Chairperson;
(b)	the Union Minister of State in charge of Revenue or Finance	…………………………… Member;
(c)	the Minister in charge of Finance or Taxation or any other Minister nominated by each State Government	……………….. Members.

(3) The Members of the Goods and Services Tax Council referred to in sub-clause (c) of clause (2) shall, as soon as may be, choose one amongst themselves to be the Vice-Chairperson of the Council for such period as they may decide.

(4) The Goods and Services Tax Council shall make recommendations to the Union and the States on—

(a)		the taxes, cesses and surcharges levied by the Union, the States and the local bodies which may be subsumed in the goods and services tax;
(b)		the goods and services that may be subjected to, or exempted from the goods and services tax;
(c)		model Goods and Services Tax Laws, principles of levy, apportionment of Goods and Services Tax levied on supplies in the course of Inter-State trade or commerce under article 269A and the principles that govern the place of supply;
(d)		the threshold limit of turnover below which goods and services may be exempted from goods and services tax;
(e)		the rates including floor rates with bands of goods and services tax;
(f)		any special rate or rates for a specified period, to raise additional resources during any natural calamity or disaster;
(g)		special provision with respect to the States of Arunachal Pradesh, Assam, Jammu and Kashmir, Manipur, Meghalaya, Mizoram, Nagaland, Sikkim, Tripura, Himachal Pradesh and Uttarakhand; and
(h)		any other matter relating to the goods and services tax, as the Council may decide.

(5) The Goods and Services Tax Council shall recommend the date on which the goods and services tax be levied on petroleum crude, high speed diesel, motor spirit (commonly known as petrol), natural gas and aviation turbine fuel.

(6) While discharging the functions conferred by this article, the Goods and Services Tax Council shall be guided by the need for a harmonised structure of goods and services tax and for the development of a harmonised national market for goods and services.

(7) One half of the total number of Members of the Goods and Services Tax Council shall constitute the quorum at its meetings.

(8) The Goods and Services Tax Council shall determine the procedure in the performance of its functions.

(9) Every decision of the Goods and Services Tax Council shall be taken at a meeting, by a majority of not less than three-fourths of the weighted votes of the members present and voting, in accordance with the following principles, namely:—

(a)		the vote of the Central Government shall have a weightage of one-third of the total votes cast, and
(b)		the votes of all the State Governments taken together shall have a weightage of two-thirds of the total votes cast,

in that meeting.

(10) No act or proceedings of the Goods and Services Tax Council shall be invalid merely by reason of—

(a)		any vacancy in, or any defect in, the constitution of the Council; or
(b)		any defect in the appointment of a person as a member of the Council; or
(c)		any procedural irregularity of the Council not affecting the merits of the case.

(11) The Goods and Services Tax Council shall establish a mechanism to adjudicate any dispute—

(a)		between the Government of India and one or more States; or
(b)		between the Government of India and any State or States on one side and one or more other States on the other side; or
(c)		between two or more States,

arising out of the recommendations of the Council or implementation thereof. ]

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Comments on Article 279A

The President of India shall within sixty days from the date of Commencement of the Constitution (One Hundred and First Amendment) Act, 2016 constitute the Goods and Services Tax Council (GST Council).

The GST Council shall decide the rate of taxes and related matters.

The GST Council shall consists of the Union Finance Minister, as the Chairperson, the Union Minister of State in charge of Revenue or Finance as member, and the Minister in charge of Finance or Taxation or any other Minister nominated by each State Government as members.

Every decision of the GST Council shall be made by a majority of not less than three-fourths of the weighted votes of the members present and voting where Centre carries a weightage of one-third and all States together have a weightage of two-thirds.

The GST Council make recommendations to the Union and the States Government on matters such as – the taxes, cesses and surcharges levied by the Union, the States and the local bodies which may be subsumed in the goods and services tax, goods and services that may be subjected to or exempted from the GST; model GST laws; principles of levy; special provisions with respect to States like Arunachal Pradesh, Assam, Nagaland, Manipur, J&K, Himachal Pradesh, Sikkim, etc. The GST Council also recommends the date on which the goods and services tax be levied on petroleum crude, high speed diesel, motor spirit (commonly known as petrol), natural gas and aviation turbine fuel.

The GST Council while discharging its functions are guided by need to for a harmonised structure of goods and services tax and for the development of harmonised national market for goods and services.

Article 279A as per Constitution (One Hundred and First Amendment) bill 2016

[AS AMENDED BY THE CONSTITUTION (ONE HUNDRED AND FIRST AMENDMENT) BILL, 2016

AS PASSED BY RAJYA SABHA ON 3RD AUGUST, 2016]

1 [Goods and Services Tax Council.

279A. (1)The President shall, within sixty days from the date of commencement of the Constitution (One Hundred and First Amendment) Act, 2016, by order, constitute a Council to be called the Goods and Services Tax Council.

(2) The Goods and Services Tax Council shall consist of the following members, namely:—

(a) the Union Finance Minister…………………… Chairperson;

(b) the Union Minister of State in charge of Revenue or Finance …………….. Member;

(c) the Minister in charge of Finance or Taxation or any other Minister nominated by each State Government……………….. Members.

(3) The Members of the Goods and Services Tax Council referred to in sub-clause (c) of clause (2) shall, as soon as may be, choose one amongst themselves to be the Vice-Chairperson of the Council for such period as they may decide.

(4) The Goods and Services Tax Council shall make recommendations to the Union and the States on—

(a) the taxes, cesses and surcharges levied by the Union, the States and the local bodies which may be subsumed in the goods and services tax;

(b) the goods and services that may be subjected to, or exempted from the goods and services tax;

(c) model Goods and Services Tax Laws, principles of levy, apportionment of Goods and Services Tax levied on supplies in the course of Inter-State trade or commerce under article 269A and the principles that govern the place of supply;

(d) the threshold limit of turnover below which goods and services may be exempted from goods and services tax;

(e) the rates including floor rates with bands of goods and services tax;

(f) any special rate or rates for a specified period, to raise additional resources during any natural calamity or disaster;

(g) special provision with respect to the States of Arunachal Pradesh, Assam, Jammu and Kashmir, Manipur, Meghalaya, Mizoram, Nagaland, Sikkim, Tripura, Himachal Pradesh and Uttarakhand; and

(h) any other matter relating to the goods and services tax, as the Council may decide

(7) One half of the total number of Members of the Goods and Services Tax Council shall constitute the quorum at its meetings.

(8) The Goods and Services Tax Council shall determine the procedure in the performance of its functions.

(10) No act or proceedings of the Goods and Services Tax Council shall be invalid merely by reason of—

(a) any vacancy in, or any defect in, the constitution of the Council; or

(b) any defect in the appointment of a person as a member of the Council; or

(11) The Goods and Services Tax Council shall establish a mechanism to adjudicate any dispute—

(a) between the Government of India and one or more States; or

(b) between the Government of India and any State or States on one side and one or more other States on the other side; or

1. Inserted by the Constitution (One Hundred and First Amendment) Bill, 2016.

Download RELEVANT PROVISIONS OF CONSTITUTION OF INDIA [AS AMENDED BY THE CONSTITUTION (ONE HUNDRED AND FIRST AMENDMENT) BILL, 2016

Article 279A PDF

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