Page 147 - GSTL_2nd April 2020_Vol 35_Part 1

2020 ] SUTHERLAND MORTGAGE SERVICES INC. v. PR. COMMR. OF CUS., CGST & C. EX. 49
tion 97(2) and on this premise, the Advance Ruling Authority has chosen to reject
Ext.P-1 application given by the petitioner at the threshold stage in terms of Sec-
tion 98(2) of the CGST Act.
16. By placing reliance on the abovesaid impugned view, the Advance
Ruling Authority has held that as the Advance Ruling Authority is creator of the
statute, it has to function strictly within the legal bounds mandated by said Act
and that as the place of supply is covered by Section 97(2) of the Act, the said
Authority is helpless to answer the question raised in the application as it is lack-
ing jurisdiction to decide the said issue and the jurisdiction of the said Authority
does not extend to the questions on determination of “place of supply”.
17. Both sides have been heard. Smt. Preetha. S. Nair, Learned Central
Government Counsel appearing for R-1 & R-3 and Dr. Thushara James, Learned
Prosecutor appearing for R-2 have strongly urged that the abovesaid view taken
by the Advance Ruling Authority is legally correct and does not require any in-
terdiction in this judicial review proceedings. Essentially, they would argue that
the Advance Ruling Authority has considered all the relevant aspects of the mat-
ter in the correct legal perspective, after taking into account ah the relevant facts
and they would argue that the crucial issue to be determined in this case, which
is in relation to the determination of the issue of place of supply, cannot be the
subject matter of advance ruling, as the said issue relating to determination of
place of supply, is not covered within the ambit of Section 97(2) of the CGST Act
and hence the Advance Ruling Authority lacks jurisdiction to decide on the said
issue and that the Advance Ruling Authority has rightly refused to answer the
query in that regard by passing Ext. P-2 order in terms of Section 97(2) of the Act.
18. It is common ground that if an order is passed under Section 97(2)
of the CGST Act, then the same is not appealable in terms of Section 100 of the
Act as sub-section (1) of Section 100 clearly provides that only if the applicant
concerned is aggrieved by any advance ruling pronounced under Section 98(4) of
the Act that the appeal would lie. Since the stand of the Advance Ruling Authori-
ty is that it has rendered its decision under Section 98(2) of the CGST Act, an or-
der in the nature of Ext.P-2 cannot be the subject matter of an appeal under Sec-
tion 100 of the said Act. Since that is the position there cannot be any dispute that
since the petitioner does not have any alternative statutory remedy, he can chal-
lenge the same mainly by way of judicial review in writ proceedings under Art.
226 of the Constitution of India. No dispute has been raised by the respondent
regarding the maintainability of the present writ proceedings. The essence of ar-
gument of the respondents is to the effect that the impugned view taken by the
Advance Ruling Authority in Ext.P-2 is fully correct and that the Writ Petition is
liable to be dismissed.
1 20. Whereas, Sri. Joseph Prabakar, Learned Counsel appearing for the
petitioner would strongly urge and plea that the said view is legally wrong and
faulty and that the Advance Ruling Authority has jurisdiction to entertain the
application on merits and then to determine all the issues including the issue re-
lating to the determination of the place of supply as aforestated.
20. It would be pertinent in that regard to focus mainly on sub-section
(2) of Section 97 of the CGST Act, which reads as follows :
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1 Paragraph number as per official text.
GST LAW TIMES  2nd April 2020  211