2018 Taxo.online 373
WP (C) No. 36 of 2017 dated 27-9-2018
M/S. FUTURE GAMING AND HOTEL SERVICES PRIVATE LIMITED AND ANOTHER
UNION OF INDIA AND OTHERS
2018
GST
State Goods & Services Tax Act, 2017
Serial No.6 of Schedule III read with Section 7 (2) of the State Goods and Services Tax Act, 2017 (SGST Act)
Meenakshi Madan Rai Justice and Bhaskar Raj Pradhan, Justice
Interim
High Court
Sikkim
Represented by: –
Petitioner: – Mr. Karma Sonam Lhendup, Advocate. Ms. Tashi Doma Sherpa, Advocate.
Respondent: -Mr. B. K. Gupta, Mr. Thinlay Dorjee Bhutia, Government Advocate. Mr. S. K. Chettri, (A.G.A). Mrs. Pollin Rai, (A.G.A). Ms. Karma Yangchen Bhutia, Mr. Manish Kr. Jain, Ms. Ranjeeta Kumari,
Order: –
I.A. No.01 of 2017 and I.A. No.05 of 2018
I.A. No.01 of 2017 and I.A. No.05 of 2018 are not pressed by Learned Counsel for the Petitioners. In the circumstance, I.A. No.01 of 2017 and
I.A. No.05 of 2018
stand disposed of. I.A No.10 of 2018 Heard on I.A. No.10 of 2018, which is an application seeking condonation of delay in filing the Rejoinder on behalf of the Petitioners to the Counter-Affidavit filed by the Respondent No.1.
Considered.
Delay condoned.
I.A. No.10 of 2018 stands disposed of.
I.A. No.06 of 2018
Heard on I.A. No.06 of 2018, which is an application for impleadment of (i) the Goods and Services Tax Council, New Delhi represented by the Chairperson (ii) the Chief Commissioner of Goods and Service Tax, West Bengal and (iii) the Senior Joint Commissioner, Large Tax Payer Unit, GST, Government of West Bengal, is the instant Petition.
The application seeks impleadment of the Goods and Services Tax Council (GST Council) New Delhi represented by the Chairperson. Learned Counsel for the Petitioners submits that in the connected matter being WP(C) No.38/2017, GST Council represented by the Secretary has already been impleaded as Respondent No.2
In the present Writ Petition one of the grounds taken is that the GST Council under the Constitution and keeping in mind the federal structure of the Constitution neither the Union of India nor any State can give preference to one State over the other. It is also pleaded that the impugned Notifications have been passed on the recommendations of the GST Council.
The application under consideration states that the GST Council is a statutory body whose duty has been enumerated as making recommendations to the Union and the States on inter alia (a) the taxes, cesses and surcharges levied which may be subsumed in the GST (b) the goods and services that may be subjected to or exempted from the GST and (c) special provision with respect to the States of Arunachal Pradesh, Assam, Jammu & Kashmir, Manipur, Meghalaya, Mizoram, Nagaland, Sikkim, Tripura, Himachal Pradesh and Uttarakhand.
It is further submitted that the Respondent No.2 in its counter affidavit has annexed the minutes of the 18th meeting of the GST Council and it is alleged that the submissions made by several representative of the North Eastern States suggesting a minimum GST being made applicable to the said States owing to their unique geographical and socio-economic scenario as also the sources of revenue generation available to the said States were disregarded by the GST Council in blatant disregard to and in breach of its Constitutional duties as expressly stipulated by Article 279A of the Constitution and therefore, is a necessary and proper party.
The Assistant Commissioner of Gangtok, Central Excise and Central GST Division has filed his affidavit in opposition on behalf of the Respondent No.1 and the GST Council in which the allegation made against the GST Council regarding the 18th meeting has been denied. However, there is no denial that GST.
Council is a necessary party in the present proceeding. Although, the said affidavit does state that the application for impleadment does not merit any considering at all.
The application under consideration also makes the following allegations against Senior Joint Commissioner, Large Tax Payer Unit, GST, as well as Chief Commissioner of Goods and Services Tax, West Bengal in the following manner:-
“6. That on 08.02.2018, the representative of Petitioner No.1 after being verbally summoned to the office of the Senior Joint Commissioner, Large Tax Payer Unit, GST, directed the representatives of the Petitioner No.1 to ask their Director, Mr. S. Martin to be present before him on 12.02.2018 and 13.02.2018. On both these occasions, the Director of the Petitioner No.1 was present, where the Director was pressurized to forthwith deposit the amount of GST that according to the Senior Joint Commissioner, Large Tax Payer Unit, GST had fallen due under the impugned Act and the notifications, at the rate of 28%. All his fervent pleas for keeping in abeyance the issue of GST till final adjudication in the instant writ petition were brushed aside and finally on 15.02.2018, the Petitioner No.1 agreed to pay the GST.
- That the Chief Commissioner of Goods and Service Tax, West Bengal and the Senior Joint Commissioner, Large Tax Payer Unit, GST are constantly disrupting the operations of the Sikkim State Lotteries in West Bengal in some manner or the other. The fervent pleas of the Petitioner with regard to the fact that the matter is pending adjudication before this Hon’ble Court was out rightly rejected. Such actions of the authorities seriously undermine the dignity and majesty of this Hon’ble Court apart from causing irreparable injury and being in constant detriment to the legal and valid commercial operations of the Petitioners. Since, this Hon’ble Court was pleased to fix the instant writ petition for final hearing on 28.02.2018, it was expected that all the parties will maintain staus-quo. However, in an unexpected chain of events, the Chief Commissioner of Goods and Service Tax, West Bengal and the Senior Joint Commissioner, Large Tax Payer Unit, GST have commenced initiating coercive actions against Petitioners and hence the Chief Commissioner of Goods and Service tax, West Bengal and the Senior Joint Commissioner, Large Tax Payer Unit, GST have become proper and necessary parties for the purpose of adjudication of the instant writ.”
The affidavit in opposition filed on behalf of the Respondent No.1 and the GST Council merely states that the averments made therein except for those matter of records are not accepted. The State of West Bengal through the Finance Secretary is Respondent No.7 in the Writ Petition.
The Petitioner seeks a prayer to hold and declare that the provisions of serial No.6 of Schedule III read with Section 7 (2) of the State Goods and Services Tax Act, 2017 (SGST Act) of the State of West Bengal exempting “actionable claims” as activities or transactions which shall be treated neither as supply of goods nor a supply or service but not excluding “lottery” from such exemption is unconstitutional, illegal and non-est as “lotteries” cannot at all be subjected to tax under the SGST Act, 2017, amongst others.
At the hearing, Mr. B.K Gupta, learned Counsel representing the Respondent No.1 as well as the GST Council would not object to the impleadment Application. No objections have been raised by the parties.
In view of the aforesaid the GST Council through its Secretary, the Chief Commissioner and the Senior Joint Commissioner, Large Tax Payer Unit, GST, Government of West Bengal, shall be impleaded as party Respondents in the present proceeding. The Application is allowed.
Let Registry take necessary steps.
I.A. No.06 of 2018 stands disposed of
Learned Counsel for the Petitioners prays for amendment of the Writ Petition.
Not objected to.
Considered.
Let the amended Writ Petition be filed within two weeks hence.
Four weeks’ time thereafter is granted to the Respondents to file Counter-Affidavit and Rejoinder, if any, be filed in the two weeks’ following.
List on 28-11-2018 along with WP(C) No.38 of 2017 and WP(C) No.59 of 2017.
