HC strikes down GST Notifications to the extent issued without GST Council’s recommendation and holds subsequent ratification invalid

 This Tax Alert summarizes a recent ruling of the Madras High Court (HC) ^[1] on the validity of notifications issued under Sections 9 and 11 of the Central Goods and Services Tax Act, 2017 (CGST Act) which incorporated provisions beyond the recommendations of the GST Council, and whether the same could subsequently be ratified by the GST Council.

The key observations of the HC are:

• Notifications issued under Sections 9 and 11 of the CGST Act are required to be issued “on the recommendations” of the GST Council, implying that such recommendations must precede and support the exercise of the Government’s delegated legislative powers.
• The Government may choose not to act upon a recommendation of the GST Council; however, it cannot act without a recommendation or travel beyond the scope of the recommendation where the statute expressly mandates the same.
• Article 279A of the Constitution confers upon the GST Council the power to make recommendations on GST matters but does not confer any express or implied power of ratification.
• Since neither the Constitution nor the GST law framework grants the GST Council the power to ratify actions already taken by the Government, the subsequent approval accorded by the Council could not cure the absence of a prior recommendation.

Basis above, HC allowed the writ petitions and quashed the notification to the extent it contained aspects on which there was no recommendation of the GST Council. Its subsequent ratification was also held to be invalid.

Comments:

• The ruling may have implications beyond the specific dispute under consideration. There are several instances (especially during COVID-19) where notifications were issued or amendment in Rules and other notifications were carried out by the Government and were subsequently placed before the GST Council for ratification in subsequent meetings. The validity of the same may be called into question basis this ruling.
• Validity of the Notification No. 56/2023 – Central Tax extending time limit to issue show cause notices (SCN) for FY 2018-19 and 2019-20 is also under challenge on the ground that they were issued without recommendation of the GST Council. Divergent HC rulings exist, and the issue is currently pending before the SC [SLP(C) No. 4240/2025].