amendment in section 146 of the CGST Act

[HimangshuKumar Ray]

So far my little understanding , I have gone through the 45th GST council meeting proposal and Finance Act 2022 and if we see section 115 of the Finance Act 2022, we will find there is a retrospective amendment in section 146 of the CGST Act , where 'all functions ...' included w.r.e.f. 22.06.2017, but in all books (2023-2024 editions) no such amendment reflecting in section 146 of the CGST Act and also not reflecting online system book.

Experts are requested, to kindly go through the section 1, section 115 of the Finance Act 2022 and express opinion. So, far my understanding, there is no need for separate notification, if you go to chapter 1, section 1 of the Finance Act 2022, Section 115 of the Finance Act 2022 said itself stated about retrospective amendment in section 146 of the CGST Act.

So, As per amendment as discussed in above, any notice, order should be generated through common portal and manual notice, order is not valid in the eye of law.

[KASTURI SETHI]

Sh. Ray Ji,

(i) In this context a notification is required.

(ii) Section 115 of the Finance Act, 2022 has not been notified so far. Without notification an amendment cannot be enforced.

(iii) It is worth while to go through the definition of the terms, 'law' and 'notification'. As per Article 13 (3) (a) of the Constitution of India, the definition of law is as under :

"law" includes any Ordinance, order, bye-law, rule, regulation, notification, custom or usage having in the territory of India the force of law;

The Supreme Court of India also includes notifications in its definition of law.

Meaning of the word, 'Notification'as per legal dictionary :

"Notification in common English acceptation means and implies a formal announcement of a legally relevant fact and in the event of a statute speaking of a notification being published in the Official Gazette, the same cannot but mean a notification published by the authority of law in the Official Gazette. It is an formal declaration and publication of an order and shall have to be in accordance with the declared policies or in the event the requirement of the statute, then in that event in accordance therewith" It is based on the judgement of the Supreme Court.

While issuing notification in this context, Section 169 (1) (2) (3) has to be taken care of otherwise both Sections i.e. 146 and 169 of CGST Act will be contradictory.

[HimangshuKumar Ray]

Sir, 

I am extremely sorry for late reply for some personal difficulty. 

In Finance Act, 2022 - Section 2(a) says section 2 to 85 of Finance Act 2022 will effective w.e.f. 01.04.2022 and  2(b) says 100 to 114 with effect from as notified latter by notification, but in case of section 115 nothing said and itself in 5th schedule said about amendment in section 146 of the CGST Act w.r.e.f. 22.06.2017, in my opinion there is no need of separate notification giving effect as section itself notified . sir, see my reply and reply. 

[KASTURI SETHI]

Sh Ray Ji,

           I have gone through your response.   Pl.  comment on the definition of law      

      "As per Article 13 (3) (a) of the Constitution of India, the definition of law is as under :

"law" includes any Ordinance, order, bye-law, rule, regulation, notification, custom or usage having in the territory of India the force of law;

The Supreme Court of India also includes notifications in its definition of law."

            The issuance of notification is requirement of Constitution of India. 

[HimangshuKumar Ray]

Sir, 

I have read the your reply. I have a question as in the Finance Act, 2022,section 115 onwards nothing said when it would come effect from. Is it mean to say that separate notification is not required. kindly comments with an example. 

[KASTURI SETHI]

A separate notification is required. 

Peruse the legal meaning of the word, 'notification' on google.   You will understand why notification is required.

AI Summary

Notification requirement for statutory amendments: retrospective changes to tax law require formal notification before legal effect. The core operative point is that a retrospective amendment in the Finance Act 2022 purporting to amend the CGST Act does not become enforceable until the amendment provision is formally notified; notifications, published by authority in the Official Gazette, are treated as part of the definition of 'law,' and failure to notify means the amendment provision has not been brought into force. Any notification must also be issued in a manner consistent with existing CGST provisions governing issuance of orders and notices to avoid contradiction.