1. INTRODUCTION – Government of Maharashtra has enacted Maharashtra settlement of Arrears of Tax, Interest and penalty act 2019 w.e.f. 06-03 2019. It provides for settlement of such outstanding arrears as on 01-04-2019 under Mvat act and other allied act, pertaining to periods upto 30-06-2017. In view of provisions of said act, the applicant dealers was eligible for waivers of such amount of arrears after payment of prescribed requisite amount and submission of application within prescribed time limit (01-04-2019 to 31-08-2019). After scrutiny of an application, if any defect or short payment of requisite amount noticed, defect notice was required to be issued within 15 days from date of receipt of an application. Considering compliance of notice, designating authority shall pass order of settlement u/s 12 of the act and waive the amounts of arrears as per provisions of the act. Consequently,it is deemed that the applicant shall be discharged of his liability to the extent of amount waived. After perusal of order of settlement,if the applicant has noticed error which is apparent from the record, application for rectification of error may be filed within six month date of service of order of settlement. However, sometimes there is rejection of an application for settlement or reduction in amount of waiver or incorrect grant of proportionate amount of waiver. Keeping in view such contingencies and in the interest of justice the settlement act provides for filing of appeal against the order of settlement.
2. APPELLATE AUTHORITIES – Section 13 provided for appeal under the settlement act. Appeal against any order passed u/s 12 of the act shall lie to the following authorities.
a) Where the order is passed by Sales Tax Officer or Assistant Commissioner, the appeal against such order shall lie to the concerned Administrative Nodal Deputy Commissioner.
b) Where the order is passed by the Deputy Commissioner, the appeal shall lie to the Administrative Nodal Joint Commissioner.
c) This issue has been clarified by Commissioner of Sales Tax Maharashtra State vide Trade circular no 9T of 2019 (para 3.17).
3. NON APPELLABLE ORDERS – It is seen that only order passed under section 12 Order of settlement/order of rejection and rectification u/s 12 (3) are appealable. There is no provision to file appeal against Review order passed u/s 17 of the act.
4. COMMON GROUNDS OF APPEAL UNDER SETTLEMENT ACT.
a) Eligibility of arrears for settlement.
b) Dispute regarding category of arrears.
c) Incorrect determination of proportionate waiver of amount.
d) Dispute regarding whether tax is disputed tax or undisputed tax.
e) Incorrect determination of requisite amount.
f) Incorrect determination of amount of waiver.
g) Order passed without issue and service of defect notice.
h) No opportunity of being heard given before rejection of application or proportionate waiver of amount.
5. APPEAL FORM – Settlement act and rules does not provides any prescribed form for filing of an appeal. Therefore, an appeal may filed on plain papers, containing details of order, period of order, dates of order, date of service of order, designation of authority who have passed order, details of disputed amount of outstanding arrears, amount of requisite amount payable and paid and amount waiver sought and waived, issue of dispute and facts of case and grounds of appeal.
6. APPEAL FEE – It is clear from provisions of the act, rule and circular instructions that no appeal fee is required to be paid while filing of appeal.
7. TIME LIMIT TO FILE APPEAL – As per provision of section 13 of the act an appeal shall be filed within sixty days from the receipt of order. Therefore, it necessary to file an appeal within time.
8. CONDONATION OF DELAY IN FILING OF APPEAL – Section 13 provides for condonation of delay in filing of an appeal. On this issues, vide para 3.17 of Trade circular no 9T of 2019 clarified that, “In case there is delay, then appeal shall only be admitted after condonation of delay. Appellate authority shall ensure that delay caused for filing appeal is justifiable and caused due to situation that is beyond the control of applicant. In other words delay may be condoned on the sufficient and justifiable grounds. “In view of above, an appellant shall submit separate application for condonation of delay explaining reasons for delay along with relevant documentary evidences.
9. PART PAYMENT IN APPEAL – Settlement order does not create any new demand of tax interest or penalty. On the contrary, it reduces such demand which is outstanding as per statutory orders, by way of granting waiver of amounts. Hence, no part payment is necessary while filing of an appeal. Therefore, no such provision has been made in the act.
10. APPEAL PROCEDURE – No specific appeal procedure has been prescribed in the act, rule or circular. This act is independent act, therefore provisions of any other act is not applicable. In such situation settled procedure by court decisions be adopted. Principle of natural justice must be followed, by giving sufficient of being heard and reasonable time must be given to the appellant to submit say and documentary evidences during the course of final hearing of appeal.
11. POWERS OF APPELLATE AUTHORITIES – Settlement act and in particular section 13 does not specifies powers of appellate authorities. It now well settled that appellate authority under any taxation statute has inherent powers, to pass such order as it think just and proper, confirming,modifying,or annulling of order appealed against. Powers of appellate authority is co-terminus with that of original authority which passed order. He can do what the latter could do. He can also do what latter failed to do.Thus, it is seen that appellate authority has wide powers to decide appeal and to pass judicious order.
12. APPEAL ORDER – No Appeal order form has been prescribed in the act and rules. Therefore, appeal order shall be passed in writing on plain paper, stating therein points of determination, decision thereon and reasons for such decision. It is expected that appeal order must be speaking and well reasoned.
13. RESTORATION OF APPEAL – Under the Mvat act, there was provision of restoration of appeal, where appeal is decided ex party for non attendance and there was sufficient cause for non attendance on appointed day. Appellant may file application for restoration of appeal. However, no such provision are present in this act and provisions of Mvat act is not applicable being independent act. Therefore, an appellant should be very punctual and sincere in attending the proceeding and in making detailed submission along with relevant documentary evidences. He must not forget that this is first and last appeal and also no provision for restoration of appeal if dismissed for non attendance.
14. PROVISION OF SECOND APPEAL – Section 13 provides for appeal provisions. There is no provision in this section for filing of second appeal against the appeal order. Thus, it is seen that only one appeal is permissible and it is first and final appeal against order of settlement.
15. WHETHER REVIEW APPLICATION CAN BE MADE AGAINST THE FIRST APPEAL ORDER UNDER SECTION 17 OF THE ACT.
16. Section 17 of the act provides for review by superior authority, of any order passed under the act by lower authority, where on examination of records noticed that order is prejudicial to the interest of revenue. Appeal order also may be reviewed. However, there is no provision in the section to review the order where it is prejudicial to the interest of the dealer. This does not provide any legal remedy when appellant is not satisfied with the appeal order. It is pertinent to note that act does not provide for rectification of appeal order even error apparent from record.
CONCLUSION – Act provides for appeal against order passed u/s 12 of the act. However, there is no provision to file appeal against appeal order. There is also no provision in the act to rectify any error in appeal order. There may be certain disputes remained in appeal order due to difference of opinion. In such cases, aggrieved appellant has no legal remedy except to file writ in High Court. However, it is not feasible and possible to every dealer considering nature of dispute and quantum involved. In this background, if any legal remedy is provided to the dealers who are not satisfied by appeal order, by way of review/rectification of appeal order on application, will serve the intent of Settlement act and would get justice to such aggrieved dealers.