Dear Friends,

Tribunalisation and the service conditions of the Members of Tribunals has taken the centre stage since the Central Government embarked upon its exercise of reforming the functioning of the various Tribunals across the country. Given that these Tribunals have opened up areas of practice for various professionals that were traditionally in the exclusive purview of Advocates, as an association we have a keen interest in their smooth functioning. Though a lot of observations have been made by the Supreme Court in various petitions with regards to various Tribunals, I plan to address today the recent development with regard to the Income Tax Appellate Tribunal.

Perhaps the most significant update regarding the Income Tax Appellate Tribunal is with regard to the order of the Supreme Court in the case of Advocate Association Bengaluru v. Anoop Kumar Mendiratta Contempt Petition (Civil) No 708 of 2021 in Writ Petition (Civil) No 502 of 2021 dated 17th of May, 2022. The contempt proceedings related to the appointment of Members to the Income Tax Appellate Tribunal. While discussing the issue of the appointment of the Members, the Supreme Court was pleased to hold that it would not be expedient in the interest of justice to pursue proceedings under the contempt jurisdiction and directed that the Contempt Petition be renumbered as an Interlocutory Application. Perhaps what is of more academic interest is that the affidavit of the secretary to the Department of legal affairs contain the tabular update about the vacancies before the tribunal. The table suggests that the pendency before the tribunal has fallen sharply from the year 2017-18 to 2021-22. While for the year 2017-18 the pendency at the end of the year was at 92,817 the pendency at the end of 2021-22 is reflected to be 50,426. It has been argued that the drop could be due to the amnesty scheme and the withdrawal of appeals due to the enhancement of the tax threshold. It is also brought out that nearly 5.5 lakh appeals are pending before the Commissioner of Income Tax (Appeals). It is noted in the order that the Union Government has not taken any decision on the appropriate strength of the Tribunal. The positions taken by the Learned Attorney General suggest that we may yet see changes to the strength and the service conditions of the Members.

In the field of The Goods and Service Tax, the Judgement of the Supreme Court in Union of India and Another v. Mohit Minerals Pvt. Ltd. Civil Appeal No. 1390 of 2022 dated 19th Of May 2022, seems to have elicited much debate wherein the Supreme Court has concluded that the recommendations of the GST Council are neither binding on the Union government nor the State government. The court held that the recommendations of the Council are a product of a collaborative dialogue and are recommendatory in nature. It was held that to hold them as binding would disrupt fiscal federalism where both the Union and the States are given equal powers to legislate on GST and that it was not imperative that one of the federal units must always possess a higher share in the power for federal units to make decisions. Notably it was held that “Indian federalism is a dialogue between cooperative and uncooperative federalism where the federal units are at liberty to use different means of persuasion ranging from collaboration to contestation”. Given the overarching discussions regarding the federalism in our country, it is yet to be seen how this judgement will affect the relationship between the Centre and states in tax administration.

Needless to say, we live in interesting times in as far as both taxation and tax administration are concerned. The re-emergence of taxation to the forefront of the national debate is a resounding affirmation of it being an important instrumentation of policy execution.

In this issue of the AIFTP Journal there are articles on very important topics. I thank all the professionals for taking out their valuable time to contribute to this issue of the journal.

K. Gopal,


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