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Rules formulated by CG u/s 184 of Finance Act, 2017 for appointment of tribunals struck down by SC

November 14, 2019[2019] 111 taxmann.com 208 (SC)
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FINANCE ACT : Tribunal, Appellate Tribunal and other Authorities (Qualifications, Experience and other Conditions of Service of Members) Rules, 2017 suffer from various infirmities; these Rules formulated by Central Government under Section 184 of Finance Act, 2017 being contrary to parent enactment and principles envisaged in Constitution as interpreted by this Court, are struck down in entirety

• Central Government is accordingly directed to re-formulate Rules strictly in conformity and in accordance with principles delineated by this Court in various cases.

• New set of Rules to be formulated by Central Government shall ensure non-discriminatory and uniform conditions of service, including assured tenure, keeping in mind fact that Chairperson and Members appointed after retirement and those who are appointed from Bar or from other specialised professions/services, constitute two separate and distinct homogeneous classes.

• It would be open to Central Government to provide in new set of Rules that Presiding Officers or Members of Statutory Tribunals shall not hold 'rank' and 'status' equivalent to that of Judges of Supreme Court or High Courts, as case may be, only on basis of drawing equal salary or other perquisites.

• There is a need-based requirement to conduct 'Judicial Impact Assessment' of all Tribunals referable to Finance Act, 2017 so as to analyse ramifications of changes in framework of Tribunals as provided under Finance Act, 2017. Thus, we find it appropriate to issue a writ of mandamus to Ministry of Law and Justice to carry out such 'Judicial Impact Assessment' and submit result of findings before competent legislative authority.

• Central Government in consultation with Law Commission of India or any other expert body shall re-visit provisions of statutes referable to Finance Act, 2017 or other Acts as listed in this order and place appropriate proposals before Parliament for consideration of need to remove direct appeals to Supreme Court from orders of Tribunals. A decision in this regard by Union of India shall be taken within six months.

• Union Government shall carry out an appropriate exercise for amalgamation of existing Tribunals adopting test of homogeneity of subject matters to be dealt with and thereafter constitute adequate number of Benches commensurate with existing and anticipated volume of work.

Issue and question of Money Bill, as defined under Article 110(1) of Constitution, and certification accorded by Speaker of Lok Sabha in respect of Part-XIV of Finance Act, 2017 is referred to a larger Bench.

Section 184 of Finance Act, 2017 does not suffer from excessive delegation of legislative functions as there are adequate principles to guide framing of delegated legislation, which would include binding dictums of this Court.

INTERIM RELIEF - Appointments to Tribunal/Appellate Tribunal and terms and conditions of appointment shall be in terms of respective statutes before enactment of Finance Bill, 2017. However, liberty is granted to Union of India to seek modification of this order after they have framed fresh Rules in accordance with majority judgment. However, in case any additional benefits concerning salaries and emoluments have been granted under Finance Act, they shall not be withdrawn and will be continued. These would equally apply to all new members.

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