“Explore the role of the Adjudicating Officer under GST and understand the distinction between Proper Officer and Adjudicating Authority. Learn about the definition of Proper Officer and Adjudicating Authority under SGST and CGST Acts, along with the delegation of powers by the Commissioner and Board. Gain insights from a legal case highlighting the significance of authority in the adjudication process and the implications of orders passed by officers without proper jurisdiction.”
The notice under GST can only be issued by the Adjudicating Officer
It is important to note that only the Proper Officer can be Adjudicating Authority. The order under GST can be passed only by the Adjudicating Authority. It means that all Adjudicating officers are proper officer, but all proper officers cannot be Adjudicating officers
Section 2(91) defines the word “Proper Officer” in relation to any function to be performed under this Act, means the Commissioner or the officer of the GST who is assigned that function by the Commissioner in the Board;
As per SGST Act-
Section 2(4)” “Adjudicating Authority” means any authority, appointed or authorized to pass any order or decision under this Act, but does not include 1) The Commissioner
2) Revisional Authority
3) Authority for Advance Ruling
4) Appellate Authority for Advance Ruling
5) Appellate Authority 6) Appellate Tribunal
7) Authority referred to in sub-section (2) of section 171.
Adjudicating Authority means any authority, appointed or authorized to pass any order or decision under SGST Act 2017. However, the above said authorities are not adjudicating authority & are not permitted to pass an order/ decision under the GST laws and hence shall not be an Adjudicating Authority:
As per the definition of Proper Officer it is clear that as per section 2(91) that proper officer includes Commissioner or the officer authorized by the Commissioner. All the Officers are authorized by the Commissioner , hence they all are Proper Officers.
Whereas as per Section 2(4) Adjudicating Authority is the officer , who passes the order, but does not include Commissioner.
All the powers have been delegated by the Commissioner by a circular (In Uttarakhand by circular No.1553 Dt 30/06/2017) to the Proper Officer to act as Adjudicating Authority . If these power are not delegated to the officer by the Commissioner as per Section 2(91) he cannot be a Proper Officer & only Proper Officer can be a Adjudicating Authority.
Where as per the definition of “Adjudicating Authority” provided U/s2(4) the Commissioner is not an Adjudicating Authority & if the Commissioner is not an Adjudicating Authority then how can the Commissioner delegate the power of Adjudication to a office.
As per the order pronounced given by the Honorable Nanital High Court in case of Vinod Kumar Vs. Commissioner Uttarakhand State GST & Other By S.P No.123 of 2022 Dated 20Th June 2022 Following the Hon’ble Supreme Court in the case of Radha Krishan Industries Vs State of Himachal Pradesh and others, (2021) 6 Supreme Court Cases 771, Para-15 of the order– “Sub-Section (91) of Section 2 provides for the “proper officer” in relation to any function to be performed under this Act, means the Commissioner or the officer of the State tax who is assigned that functions by the Commissioner. Thus, it is apparent that the officers acts under the aegis and control of the Commissioner, and nowhere in the Uttarakhand GST Act, it is provided that he shall act independently to the duties assigned to him by the Commissioner. Therefore, the observation of the Hon’ble Supreme Court, i.e., the Commissioner is not an adjudicating authority, hence an appeal will not lie against the orders passed by him under Section 107 of the Uttarakhand Act shall also be applicable to any orders passed by the other officers”.
Thus from the order passed by Honorable Nanital High Court in case of Vinod Kumar Vs. Commissioner Uttarakhand State GST & Other By S.P No.123 of 2022 Dated 20Th June 2022,it is clear that all the power to the proper officer have been delegated by the Commissioner & if the Commissioner does not have the power of Adjudication , how can he delegate the power .
Similar is the position in CGST Act
As per CGST Act-
Under CGST Act the definition of proper officer is same as provided U/s2(91). But there is a minor difference in the Definition of Adjudication Authority,
i.e in place of Commissioner , word Central Board of Indrect Taxes and Customs is inserted,
Section 2(4) of CGST Act,
Section 2(4)” “Adjudicating Authority” means any authority, appointed or authorized to pass any order or decision under this Act, but does not include
1) The Central Board of Indirect Taxes and Customs.
2) Revisional Authority
3) Authority for Advance Ruling
4) Appellate Authority for Advance Ruling
5) Appellate Authority 6) Appellate Tribunal
7) Authority referred to in sub-section (2) of section 171.
All the powers have been delegated by the Board by a Circular No. 3/3/2017 – GST Dt 5/7/2017 to the Proper Officer to act as Adjudicating Authority.
Where as per the definition of “Adjudicating Authority” provided U/s2(4) the Board is not an Adjudicating Authority & if the Board is not an Adjudicating Authority then how can the Board delegate the power of Adjudication to a officer.
Thus in above circumstances it is clear that the order can be passed by an adjudicating authority but neither the Board in case of CGST Act nor the Commissioner in case of SGST Act is an Adjudicating authority as on toady .
Hence in such circumstances the Power delegated by the Board & Commissioner are without the Authority of Law .
Therefore in my opinion , there is no Adjudicating Authority under CGST Act or SGST Act as on today . Hence any order passed by any officer is without jurisdiction & Void , against the GST Act .
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