2021 (2) TMI 435
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....ri Suyash Agarwal, Sri Atul Gupta, learned counsel and other learned counsel for the petitioners, Sri Shashi Prakash, learned Additional Solicitor General of India assisted by Sri Krishna Agarwal, Sri K.J. Shukla, Sri R.C. Tiwari, Sri Anant Kumar Tiwari, learned counsel and other learned counsel for the Indirect Taxes/Central Government and Sri Manish Goel, learned Additional Advocate General assisted by Sri C.B. Tripathi, learned Special Counsel appearing for the State-respondents. 2. With the consent of learned counsels for the parties, Writ Tax No.655 of 2018 has been treated as the leading writ petition and only the relief relating to the constitution of the Goods and Services Tax Appellate Tribunal (hereinafter referred to as 'the Tribunal') under the Central Goods and Services Tax Act, 2017 (hereinafter referred to as 'the CGST Act')/ U.P. Goods and Services Tax Act, 2017 (hereinafter referred to as 'the U.P. GST Act'), is being decided and all other questions are left open. 3. Reliefs sought in Writ Tax No.655 of 2018, are reproduced below: "A- Issue a writ, order or direction in the nature of mandamus commanding respondents No. 1 & 2 to constitute 'Region....
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....ns are appealable before the Appellate Tribunal under Section 112 of the CGST Act/ U.P. GST Act but the petitioners have filed these writ petitions for reason that the Tribunal under Section 109 of the CGST Act has not been constituted so far by the Government, i.e. the Central Government, under Section 109 of the CGST Act. Since the challenge to the impugned orders relates to questions of fact and the Appellate Tribunal is the last fact finding authority, therefore, we leave it open for all the petitioners to challenge the impugned orders before the Appellate Tribunal under Section 112 of the CGST Act/ U.P. GST Act as and when the State Bench and Area Benches of the Appellate Tribunal are constituted in the State of Uttar Pradesh. Relief being considered in this bunch of writ petitions:- 5. Now we proceed to consider the reliefs (A), (D1) and (E1) which at the cost of repetition, are reproduced hereunder: "A- Issue a writ, order or direction in the nature of mandamus commanding respondents No. 1 & 2 to constitute 'Regional Bench' and 'State Bench' for the State of U.P, at the seat of jurisdictional High Court and also such number of 'Area Benches' in....
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....nment has also placed a letter, which is also taken on record. Learned Counsel for the petitioner, Sri Nishant Mishra has drawn the attention of this Court to the provisions of Section 109 (6) of Central Goods & Services Tax Act, 2017 which reads as hereunder:- "(6) The Government shall, by notification, specify for each State or Union territory except for the State of Jammu and Kashmir, a Bench of the Appellate Tribunal (hereafter in this Chapter, referred to as ?State Bench?) for exercising the powers of the Appellate Tribunal within the concerned State or Union territory: Provided that for the State of Jammu and Kashmir, the State Bench of the Goods and Services Tax Appellate Tribunal constituted under this Act shall be the State Appellate Tribunal constituted under the Jammu and Kashmir Goods and Services Tax Act, 2017: Provided further that the Government shall, on receipt of a request from any State Government, constitute such number of Area Benches in that State, as may be recommended by the Council: Provided also that the Government may, on receipt of a request from any State, or on its own motion for a Union territory, notify th....
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....ncement of the Constitution (One Hundred and First Amendment) Act, 2016, by order, constitute a Council to be called the Goods and Services Tax Council. (2) The Goods and Services Tax Council shall consist of the following members, namely:- (a) the Union Finance Minister........................ Chairperson; (b) the Union Minister of State in charge of Revenue or Finance................. Member; (c) the Minister in charge of Finance or Taxation or any other Minister nominated by each State Government....................Members. (3) The Members of the Goods and Services Tax Council referred to in sub-clause (c) of clause (2) shall, as soon as may be, choose one amongst themselves to be the Vice-Chairperson of the Council for such period as they may decide. (4) The Goods and Services Tax Council shall make recommendations to the Union and the States on- (a) the taxes, cesses and surcharges levied by the Union, the States and the local bodies which may be subsumed in the goods and services tax; (b) the goods and services that may be subjected to, or exempted from the goods and services tax; (c) model Goods....
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....; or (c) any procedural irregularity of the Council not affecting the merits of the case. (11) The Goods and Services Tax Council shall establish a mechanism to adjudicate any dispute- (a) between the Government of India and one or more States; or (b) between the Government of India and any State or States on one side and one or more other States on the other side; or (c) between two or more States, arising out of the recommendations of the Council or implementation thereof." Section 109 of the CGST Act:- 109.Constitution of Appellate Tribunal and Benches thereof.- (1) The Government shall, on the recommendations of the Council, by notification, constitute with effect from such date as may be specified therein, an Appellate Tribunal known as the Goods and Services Tax Appellate Tribunal for hearing appeals against the orders passed by the Appellate Authority or the Revisional Authority. (2) The powers of the Appellate Tribunal shall be exercisable by the National Bench and Benches thereof (hereinafter in this Chapter referred to as "Regional Benches"), State Bench and Benches thereof (hereafter in this Chapter referr....
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....ate Bench and Area Benches of the Appellate Tribunal shall consist of a Judicial Member, one Technical Member (Centre) and one Technical Member (State) and the State Government may designate the senior most Judicial Member in a State as the State President. (10) In the absence of a Member in any Bench due to vacancy or otherwise, any appeal may, with the approval of the President or, as the case may be, the State President, be heard by a Bench of two Members: Provided that any appeal where the tax or input tax credit involved or the difference in tax or input tax credit involved or the amount of fine, fee or penalty determined in any order appealed against, does not exceed five lakh rupees and which does not involve any question of law may, with the approval of the President and subject to such conditions as may be prescribed on the recommendations of the Council, be heard by a bench consisting of a single member. (11) If the Members of the National Bench, Regional Benches, State Bench or Area Benches differ in opinion on any point or points, it shall be decided according to the opinion of the majority, if there is a majority, but if the Members are equal....
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....nch of the Appellate Tribunal for exercising the powers of the Appellate Tribunal within the concerned State or Union Territory. Under the second provision to sub-Section (6) of Section 109 of the CGST Act, area benches in that State shall be constituted by the Central Government in such number as may be recommended by the council on receipt of a request from the concerned State Government. The third proviso to sub-Section (6) of Section 109 of the CGST Act provides that the Government may on receipt of a request from any State, or on its own motion for a Union Territory notify the Appellate Tribunal in a State to act as the Appellate Tribunal for any other State or Union Territory, as may be recommended by the council, subject to such terms and conditions as may be prescribed. Section 109(2) of the U.P. GST Act provides that the constitution and jurisdiction of State Bench and the Area Benches located in the State shall be in accordance with the provisions of Section 109 of the CGST Act or the Rules made thereunder. Thus, sub-section (6) of Section 109 of the CGST Act clearly mandates that "State Bench of the Goods and Services Tax Appellate Tribunal" shall be constituted and noti....
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....e was decided by the Lucknow Bench of this Court vide judgment and order dated 31.05.2019. Taking note of the provisions of Section 109 of the CGST Act, the Hon'ble Bench opined that the seat where the Tribunal is to be established, is an issue which is within the domain of the executive in terms of Section 109 of the CGST Act and is not justiciable. The Bench observed that it was not concerned with the issue on merits as to where the Benches should be established but only with the issue whether the earlier proposal could have been reviewed and thereafter proceeded to quash the amended proposal dated 15.03.2019 observing, as under: "44. Thus there are two Seats of the High Court of Judicature at Allahabad, one at Lucknow and the other at Allahabad, none of which is permanent. 49. Now the seat where the Tribunal is to be established is an issue which is within the domain of the Executive in terms of Section 109 of CGST Act ordinarily and is not justiciable in view of the decision of the Supreme Court in the case of Lalit Kumar (supra), wherein it was held that "that the issue with regard to setting up of permanent Bench and Circuit Benches of the Tribunal is not to....
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....eferred. Consequently, in 35th meeting, no decision was taken by the Council regarding constitution of State Bench and Area Benches in the State of Uttar Pradesh. However, in 25 States and 5 Union Territories, State Benches of the Appellate Tribunal were constituted and notified by Notification No.2744 dated 21.08.2019 and published in the Gazette of India. 15. Thereafter, in its 37th meeting held on 20.09.2019, the GST Council vide Agenda Item No.18 observed that for the State of Uttar Pradesh, Department of Revenue would consider the records/ court orders issued by the Hon'ble High Court Benches of Allahabad and Lucknow taking a final view for the location of a State Bench of the Tribunal in view of the request made by the State of Uttar Pradesh. 16. Thus, even on quashing of the afore-quoted proposal of the State Government dated 15.03.2019 in PIL Civil No.6800 of 2019, the proposal of the State Government dated 05.03.2019, remained with the Council for establishing State Bench at Allahabad, which was neither under challenge in the PIL Civil No.6800 of 2019 nor it was withdrawn by the State Government. 17. Thereafter, the GST Council in 39th Meeting held on 14.03.202....
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....rcial Tax Uttar Pradesh Lucknow wrote a DO Letter No.20/ GST dated 29.05.2020 to the Joint Secretary of the GST Council, which is extracted below: "Amrita Soni I.A.S. 44/Dt.01-06-2020 (Do. No.20/GST Commissioner Commercial Tax Uttar Pradesh Lucknow. 29th May 2020 SUBJECT- Agenda Item 6: Creation of the State and Area Benches of the Goods and Services Tax Appellate Tribunal (GSTAT) for the State of Uttar Pradesh of the 39th GST Council meeting. Respected Sir, This is in reference to the Agenda item 6: Creation of the State and Area Benches of the Goods and Services Tax Appellate Tribunal (GSTAT) for the State of Uttar Pradesh of the 39th GST Council meeting, held on 14 march 2020 at Vigyan Bhawan, New Delhi. In this regard, I would like to communicate you that Government of Uttar Pradesh has decided to create total 04 benches of GSTAT including State Bench in the state i.e. State Bench in Lucknow and 03 Area benches in Varanasi, Ghaziabad, and Agra respectively, instead of 05 benches of GSTAT proposed by the state earlier, Kindly acknowledge the decision as above from Government of Uttar Pradesh. ....
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....d, Agra and Prayagraj was considered and approved by the Council. 7. For Agenda No. 7 the Council approved the creation of State Bench at Lucknow and 4 Area benches at Varanasi, Ghaziabad, Agra and Prayagraj for the State of Uttar Pradesh." 20. The relief in the nature of certiorari to quash the aforesaid recommendation DO Letter No.20/GST dated 29.05.2020 issued by the respondent No.3 (Commissioner, Commercial Tax, U.P. Lucknow) and approval by the respondent No.6 (GST Council) in its 40th meeting held on 12.06.2020 for recommending to create State Bench at Lucknow and 4 Area Benches at Varanasi, Ghaziabad, Agra and Prayagraj, has been sought by relief No.(D1). By Relief No.(E1) and Relief No.(A), a direction has been sought to the respondent No.6 to restore its decision of the 39th Meeting held on 14.03.2020 and a direction to the respondent No.1 to forthwith issue necessary notification by creation of State Bench at Prayagraj and Area Benches at Ghaziabad, Lucknow, Varanasi and Agra. Stand taken by the respondent Nos.1 and 6 (Union of India and GST Council) in their affidavits:- 21. The stand taken by the respondent Nos.1 and 6 in their counter affidavits/ affi....
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....pursuing to file an SLP in the Hon'ble Supreme Court of India against the Hon'ble Allahabad High Court, Lucknow Bench judgement dated 31.05.2019 in PIL Civil No. 6800 of 2019 before the Hon'ble Supreme Court of India." (c) In paragraph-8 of the affidavit dated 16.01.2020 filed on behalf of respondent No.1 (Union of India), it has been stated as under: "8. It is humbly submitted that the matter regarding deciding the location and number of Benches of the GSTAT is an executive prerogative. The GST Council is a constitutional Body under Article 279A of the Constitution of India, which alone can make recommendation to the Union and State Governments and it is the appropriate authority for recommending the location and number of benches of GSTAT." Stand taken by the State-Respondents in their counter affidavits/ affidavits 22. The stand taken by the State-respondents in their counter affidavits/ affidavits is, as under: (a) In paragraphs-3, 6 and 7 of the supplementary counter affidavit dated 27.02.2019 filed on behalf of respondent No.2 (State of U.P.), it has been stated as under: "3.That under Section 109 of GST Act, 2017 the Ce....
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.... of letter dated 11.07.2019 as well as copy of minutes of Agenda-8 are being filed herewith and marked as Annexure No.-6 collectively to this affidavit. 10. That, the State Government is also considering further action for filing S.L.P. against the judgment and order dated 31.05.2019, passed by Hon'ble High Court at Lucknow. 11. That, under Section 109 of the Goods and Service Tax Act, 2017, it is the Central Government which has to specify for each State and Indian Territory a bench of Appellate Tribunal "State Bench and on receipt on the request of the State Government, the Central Government has to constitute such number of Area Benches in the State as may be recommended by the Council." 23. Learned Additional Solicitor General of India appearing along with other learned counsel for Indirect Taxes - Central Government has referred to the stand taken in the aforementioned affidavits to contend that the matter regarding the decision for location and the number of Benches of the GSTAT, is an executive prerogative and the GST Council being a constitutional body under Article 279A of the Constitution of India, alone can make a recommendation to the Union in r....
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....and other at Allahabad, none of which is permanent. The provisions of Section 109 of the CGST Act/ U.P. GST Act, were not under consideration in the aforesaid case except that in concluding portion of the order, a reference to Section 109 has been made holding that the seat where the Tribunal is to be established is an issue which is in the domain of executive in terms of Section 109. The aforesaid case was filed by an Advocates Association. The present writ petitions have been filed by the dealers of different districts, namely Banda, Kanpur Nagar, Kanpur, Mathura, Lalitpur, Meerut, Aligarh, NOIDA/G.B. Nagar, Bijnor, Agra, Ghaziabad, Bulandshahar, Jhansi and Moradabad, against the order passed by authorities under CGST Act/ U.P. GST Act and their main argument is of interpretation of Section 109 of the CGST Act/ U.P. GST Act and the relief has been sought for establishing the State Bench and Area Benches. The reliefs so sought have already been quoted above. 27. It shall not be out of place to mention that in Special Appeal No.1481 of 2007 (M/S Universal Insulator And Cereamics Ltd. vs. Official Liquidator High Court Allahabad), decided on 17.10.2019, a Division of this Court c....
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....ection 130 of G.I. Act, 1915-1919, Acts specified in Fourth Schedule were repealed and Indian High Courts Act, 1861 and Indian High Courts Act, 1865 in entirety were repealed. The G.I. Act, 1915-1919 obviously did not cover Judicial Commissioner's Court for Oudh Province. 119. However for the first time, G. I. Act, 1935 while declaring as to which Court shall be deemed to be High Courts for the purpose of G. I. Act, 1935, declared, besides others, existing High Courts, to include Chief Court of Oudh also. This status conferred upon Chief Court of Oudh as a 'High Court' came to be recognized vide U. P. High Courts (Amalgamation) Order, 1948 wherein Chief Court of Oudh at Lucknow and High Court of Judicature at Allahabad, both were termed as 'existing High Courts' and on amalgamation gave rise to a New High Court i.e. 'High Court of Judicature at Allahabad'. However, Chief Justice of Allahabad High Court became Chief Justice of New High Court and Chief Judge of Avadh/Oudh became one of the Judges though as per his priority, he was placed above other Puisne Judges of High Court of Judicature at Allahabad. Superintendence of New High Court by Chief ....
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.... 2002 (All) 206, Ashok Pandey vs. Allahabad High Court, (2014) 3 All.LJ 507 and also from judgments of Hon'ble Supreme Court in U.P. Junior Doctors' Association Committee vs. B. Sheetal Nandwani, (1990) 4 SCC 633 (Para-5) and L.P. Misra vs. State of U.P., (1998) 7 SCC 379 (Para-8). 30. Coming back to the proceedings before the GST Council; perusal of Agenda Item No.7 of the 40th Meeting of the Council held on 12.06.2020 as reproduced in Para-19 above, goes to show that the recommendation has been made on the basis of DO Letter No.20/GST dated 29th May, 2020 for creation of State Bench and Area Benches of the Goods and Services Tax Appellate Tribunal, for the State of Uttar Pradesh. The D.O. Letter No.20/GST dated 29.05.020 as reproduced in Para-18 above would show that it is a letter written by the Commissioner Commercial Tax, who is an Officer under the U.P. GST Act and appointed by the State Government by notification, as evident from the definition of the word "Commissioner" under Section 2(24) read with Sections 3 and 4 of the U.P. GST Act, 2017. The earlier proposals dated 05.03.2019 and 15.03.2019 were of the State Government through its Additional Chief Secretary, who is ....
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....ng appeals under Section 112 of the CGST Act/ U.P. GST Act. The Appellate Tribunal being the last fact finding authority and its not availability in the State of Uttar Pradesh, is causing serious prejudice to the rights of aggrieved persons for statutory appeal which is continuing since the enactment of the CGST Act/ U.P. GST Act. Therefore, in peculiar facts and circumstances of the case and in view of the legislative mandate of Section 109(6) of the CGST Act, we direct as under: (i) The GST Council shall forward its recommendation of Agenda Item No.6 of the 39th Meeting held on 14.03.2020 to the Central Government/ respondent No.1 within two weeks from today. (ii) Thereafter, the respondent No.1/ Central Government shall, within next four weeks, specify by notification in terms of sub-Section (6) of Section 109 of the CGST Act the "State Bench" at Prayagraj (Allahabad), of the Goods and Services Tax Appellate Tribunal and four Area Benches at Ghaziabad, Lucknow, Varanasi and Agra, in the State of Uttar Pradesh for exercising the powers of the Appellate Tribunal. (iii) The respondent Nos.1, 2, 3 and 6 shall ensure that the State Bench and the Area Benche....
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....ी० अधिनियम के अंतरà¥à¤—त पà¥à¤°à¤¾à¤µà¤¿à¤§à¤¾à¤¨à¤¿à¤¤ अपीलीय टà¥à¤°à¤¿à¤¬à¥à¤¯à¥‚नल के सà¥à¤Ÿà¥‡à¤Ÿ बेंच à¤à¤µà¤‚ उनकी à¤à¤°à¤¿à¤¯à¤¾ बेंनà¥à¤šà¥‡à¤œ के गठन से संबंधित पà¥à¤°à¥‡à¤¤ पà¥à¤°à¤¸à¥à¤¤à¤¾à¤µ विषयक कृपया अधोहसà¥à¤¤à¤¾à¤•à¥à¤·à¤°à¥€ के अरà¥à¤¦à¥à¤§à¤¶à¤¾à¤¸à¤•ीय पतà¥à¤° संखà¥à¤¯à¤¾-334 / 11-2-18-9(24)/19, दिनांक 21.02.2019 का संदरà¥à¤ गà¥à¤°à¤¹à¤£ करने का कषà¥à....
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....त पà¥à¤°à¤¾à¤µà¤¿à¤§à¤¾à¤¨à¤¿à¤¤ अपीलीय टà¥à¤°à¤¿à¤¬à¥à¤¯à¥‚नल के सà¥à¤Ÿà¥‡à¤Ÿ बेंच à¤à¤µà¤‚ उनकी à¤à¤°à¤¿à¤¯à¤¾ बेंनà¥à¤šà¥‡à¤œ के गठन से संबंधित पà¥à¤°à¥‡à¤·à¤¿à¤¤ पà¥à¤°à¤¸à¥à¤¤à¤¾à¤µ विषयक कृपया अधोहसà¥à¤¤à¤¾à¤•à¥à¤·à¤°à¥€ के अरà¥à¤¦à¥à¤§à¤¶à¤¾à¤¸à¤•ीय पतà¥à¤° संखà¥à¤¯à¤¾ - 476 / 11-2-19–9(24)/19, दिनांक 15.03.2019 का संदरà¥à¤ गà¥à¤°à¤¹à¤£ करने का कषà¥à¤Ÿ करें। 2- उलà¥à¤²à¥‡à¤–न....
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....रिबà¥à¤¯à¥‚नल (GSTAT) के गठन के पà¥à¤°à¤¸à¥à¤¤à¤¾à¤µ जी०à¤à¤¸à¥¦à¤Ÿà¥€à¥¦ काउंसिल की आगामी बैठकें के à¤à¤œà¥‡à¤£à¥à¤¡à¤¾ में शामिल करते हà¥à¤¯à¥‡ ई-मेल के माधà¥à¤¯à¤® से इस विषय पर पà¥à¤°à¤¸à¥à¤¤à¤¾à¤µà¤¿à¤¤ à¤à¤œà¥‡à¤£à¥à¤¡à¤¾ बिनà¥à¤¦à¥ राजà¥à¤¯à¥‹à¤‚ के कनà¥à¤«à¤°à¥à¤®à¥‡à¤¶à¤¨ हेतॠई-मेल के माधà¥à¤¯à¤® से सरà¥à¤•à¥à¤²à¥‡à¤Ÿ किया गया है। 3- ततà¥à¤....
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....¤¸à¤°à¤•ार का है। 5- उकà¥à¤¤ समगà¥à¤° तथà¥à¤¯à¥‹à¤‚ के दृषà¥à¤Ÿà¤¿à¤—त उतà¥à¤¤à¤° पà¥à¤°à¤¦à¥‡à¤¶ राजà¥à¤¯ की ओर से जी०à¤à¤¸à¥¦à¤Ÿà¥€à¥¦ अपीलेट टà¥à¤°à¤¿à¤¬à¥à¤¯à¥‚नल की सà¥à¤Ÿà¥‡à¤Ÿ बेनà¥à¤œ à¤à¤µà¤‚ à¤à¤°à¤¿à¤¯à¤¾ बेनà¥à¤šà¥‡à¤œ के गठन का संशोधित पà¥à¤°à¤¸à¥à¤¤à¤¾à¤µ पà¥à¤°à¤¥à¤® पà¥à¤°à¤¸à¥à¤¤à¤° में संदरà¥à¤à¤¿à¤¤ अरà¥à¤¦à¥à¤§à¤¶à¤¾à¤¸à¤•ीय पतà¥à¤° दिनांक 15.03.2019 दà¥à¤µà¤¾à¤°à¤¾ à¤....
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