Himanshu Malhotra

Background

Tax laws (or any law, for that matter) imposes obligations. Such obligations are broadly of two kinds: tax-related and procedure-related. The taxpayer’s compliance with these obligations is verified by the tax officer (by various instruments such as scrutiny, audit, anti-evasion, etc.), as a result of which, sometimes there are situations of actual or perceived non-compliance. If the difference in views persists, it results into a dispute, which is then required to be resolved.

Tax law recognizes that on any given set of facts and laws, there can be different opinions or viewpoints. Hence, it is likely that the taxpayer may not agree with the “adjudication order” so passed by the tax officer. It is equally possible that the Department may itself not be in agreement with the adjudication order in some cases. It is for this reason that the statute provides further channels of appeal, to both sides.

GST being implemented in our country is a dual GST i.e. to say every supply attracting the levy will be leviable to both Central tax and State tax. So does this mean that if a taxpayer is aggrieved by any such transaction, he will have to approach both the authorities for exercising his right of appeal? The answer is a plain NO. The Act makes provisions for cross empowerment between CGST and SGST/UTGST officers so as to ensure that if a proper officer of one Act (say CGST) passes an order with respect to a transaction, he will also act as the proper officer of SGST for the same transaction and issue the order with respect to the CGST as well as the SGST/UTGST component of the same transaction. The Act also provides that where a proper officer under one Act (say CGST) has passed an order, any appeal/review/ revision/rectification against the said order will lie only with the proper officers of that Act only (CGST Act). So also if any order is passed by the proper officer of SGST, any appeal/review/revision/rectification will lie with the proper officer of SGST only.

Levels of appellate authority under goods and service tax act:

1. Appeal to Appellate Authority (Section 107)

Section 107(1) Section 107(2) & (3)
Who can file an appeal  Any person aggrieve by the order passed under state goods and service act or union goods and service act or adjudicating authority may appeal to such appellate authority as may be prescribed. The Commissioner may, on his own motion, or upon request from the Commissioner of State tax or the Commissioner of Union territory tax, call for and examine the record of any proceedings in which an adjudicating authority has passed any decision or order under this Act or the State Goods and Services Tax Act or the Union Territory Goods and Services Tax Act, for the purpose of satisfying himself as to the legality or propriety of the said decision or order and may, by order, direct any officer subordinate to him to apply to the Appellate Authority.
Time Limit 3 months from the date of communication of such order. 6 months from the date of communication of the said decision or order for the determination of such points arising out of the said decision or order as may be specified by the Commissioner in his order.
Extension of period of filing of appeal An extension of 1 month may be provided if the appellate authority is satisfied that the appellant was prevented by sufficient cause (section 107(4)). An extension of 1 month may be provided if the appellate authority is satisfied that the appellant was prevented by sufficient cause (section 107(4)).
Form No As per Rule No 108(1) Appeal under this section shall be filed in FORM GST APL-01 shall be signed in the manner specified in rule 26*. As per Rule No 109(1) Appeal under this section shall be filed in FORM GST APL-03 along with the relevant documents, either electronically or otherwise as may be notified by the Commissioner.
Appellate Authority As per Rule 109A(1) any person aggrieved by any decision or order passed under this Act or the State Goods and Services Tax Act or the Union Territory Goods and Services Tax Act may appeal to within 3 months from the date on which the said decision or order is communicated to such person:

a) The Commissioner (Appeals) where such decision or order is passed by the Additional or Joint  Commissioner;

b) The Additional Commissioner (Appeals) where such decision or order is passed by the Deputy or Assistant Commissioner or Superintendent.

As per Rule 109A(2), an officer directed under this section to appeal against any decision or order passed under this Act or the State Goods and Services Tax Act or the Union Territory Goods and Services Tax Act may appeal to within 6 months from the date of communication of the said decision or order:

(a) The Commissioner (Appeals) where such decision or order is passed by the Additional or Joint Commissioner;

(b) The Additional Commissioner (Appeals) where such decision or order is passed by the Deputy or Assistant Commissioner or The Superintendent.

*Rule 26: All applications, appeals documents required to be submitted under this act shall be submitted electronically with a digital signature certificate or through e-signature. Each document including the return furnished online shall be signed or verified through electronic verification code-

(a) In the case of an individual, by the individual himself or where he is absent from India, by some other person duly authorized by him in this behalf, and where the individual is mentally incapacitated from attending to his affairs, by his guardian or by any other person competent to act on his behalf;

(b) In the case of a Hindu Undivided Family, by a Karta and where the Karta is absent from India or is mentally incapacitated from attending to his affairs, by any other adult member of such family or by the authorized signatory of such Karta;

(c) In the case of a company, by the chief executive officer or authorized signatory thereof;

(d) In the case of a Government or any Governmental agency or local authority, by an officer authorized in this behalf;

(e) In the case of a firm, by any partner thereof, not being a minor or authorized signatory thereof;

(f) In the case of any other association, by any member of the association or persons or authorized signatory thereof;

(g) In the case of a trust, by the trustee or any trustee or authorized signatory thereof; or

(h) In the case of any other person, by some person competent to act on his behalf, or by a person authorized in accordance with the provisions of section 48.

Deposit of money:

As per section 107(6), no appeal shall be filled under section 107(1) unless:

(a) In full, such part of the amount of tax, interest, fine, fee and penalty arising from the impugned order, as is admitted by him; and

(b) A sum equal to 10% of the remaining amount of tax in dispute arising from the said order, in relation to which the appeal has been filed.

As per section 107(7), where the appellant has paid the amount under sub-section (6), the recovery proceedings for the balance amount shall be deemed to be stayed.

Adjournments:

As per section 107(8), the Appellate Authority may, if sufficient cause is shown at any stage of hearing of an appeal, grant time to the parties or any of them and adjourn the hearing of the appeal for reasons to be recorded in writing: Provided that no such adjournment shall be granted more than three times to a party during hearing of the appeal.

Additional grounds before the Appellate authority:

As per section 107(10) Appellate authority may at any time of hearing of appeal, allow appellant to add any grounds of appeal not specified in the ground of appeal, if it is satisfied that the omission of that ground from the grounds of appeal was not wilful or unreasonable.

Order Passed by Appellate Authority

  • As per section 107(11), The Appellate Authority shall, after making such further inquiry as may be necessary, pass such order, as it thinks just and proper, confirming, modifying or annulling the decision or order appealed against but shall not refer the case back to the adjudicating authority that passed the said decision or order. Provided that an order enhancing any fee or penalty or fine in lieu of confiscation or confiscating goods of greater value or reducing the amount of refund or input tax credit shall not be passed unless the appellant has been given a reasonable opportunity of showing cause against the proposed order: Provided further that where the Appellate Authority is of the opinion that any tax has not been paid or short-paid or erroneously refunded, or where input tax credit has been wrongly availed or utilized, no order requiring the appellant to pay such tax or input tax credit shall be passed unless the appellant is given notice to show cause against the proposed order and the order is passed within the time limit specified under section 73 or section 74.
  • As per section 107(12), The order of the Appellate Authority disposing of the appeal shall be in writing and shall state the points for determination, the decision thereon and the reasons for such decision.
  • As per section 107(13), The Appellate Authority shall, where it is possible to do so, hear and decide every appeal within a period of one year from the date on which it is filed. Provided that where the issuance of order is stayed by an order of a court or Tribunal, the period of such stay shall be excluded in computing the period of one year.
  • As per section 107(14), on disposal of the appeal, the Appellate Authority shall communicate the order passed by it to the appellant, respondent and to the adjudicating authority.
  • As per section 107(15), a copy of the order passed by the Appellate Authority shall also be sent to the jurisdictional Commissioner or the authority designated by him in this behalf and the jurisdictional Commissioner of State tax or Commissioner of Union Territory Tax or an authority designated by him in this behalf.

2. Appeal to Appellate Tribunal

Section 112(1) & (2) Section 112(3) & (4)
Who can file an appeal  Any person aggrieved by the order of passed under section 107 & 108 of the act

shall file an appeal to the appellate authority. If the amount involved is less than Rs. 50,000, the appellate tribunal may in its discretion refuse to accept the appeal.

 

The Commissioner may, on his own motion, or upon request from the Commissioner of State tax or Commissioner of Union territory tax, call for and examine the record of any order passed by

the Appellate Authority or the Revisional Authority under this Act or the State Goods and Services Tax Act or the Union Territory Goods and Services Tax Act for the purpose of satisfying himself as to the legality or propriety of the said order and may, by order, direct any officer subordinate to him to apply to the Appellate Tribunal.

Time Limit 3 months from the date of communication of such order. 6 months from the date on which the said order has been passed for determination of such points arising out of the said order as may be specified by the Commissioner in his order.
Extension of period of filing of appeal An extension of 3 month may be provided if the appellate authority is satisfied that the appellant was prevented by sufficient cause (section 112(6)) Extension is not allowed.

 

Form No As per Rule 110(1), Appeal under this section shall be filled in FORM GST APL05, on the common portal and a provisional acknowledgement shall be issued to the appellant immediately. The appeal shall be signed in the manner specified in rule 26. As per rule 111(1), Appeal under this section shall

be filled in FORM GST APL-07, on the common portal along with relevant documents.

Memorandum of cross objection:

In pursuance of section 112(5), on receipt of notice that an appeal has been preferred under the section, the party against whom the appeal has been preferred may, notwithstanding that he may not have appealed against such order or any part thereof, file, within 45 days of the receipt of notice, a memorandum of cross-objections, verified in the prescribed manner, against any part of the order appealed against. As per section 112(6) an extension of 45 days after the expiry of the said period may be provided if the appellate authority is satisfied that the appellant was prevented by sufficient cause. Memorandum of cross objection shall be filled in FORM GST APL-06. Memorandum of cross objection shall be signed as per Rule 26.

Payment of fees:

As per section 112(7), appeal shall be in such form and verified in such manner and shall be accompanied by such fess as may be prescribed. As per rule 112(5), fees for filing appeal or restoration of appeal shall be Rs. 1000 for every Rs. 1 lakh of amount involved subject to maximum of Rs. 25,000.

Deposit of money:

As per section 112(8), no appeal shall be filled under section 107(1) unless:

(a) In full, such part of the amount of tax, interest, fine, fee and penalty arising from the impugned order, as is admitted by him; and

(b) A sum equal to 20% of the remaining amount of tax in dispute, in addition to the amount paid under section 107(6), arising from the said order, in relation to which the appeal has been filed.

As per section 112(9), where the appellant has paid the amount under sub-section (8), the recovery proceedings for the balance amount shall be deemed to be stayed.

Rectification of application made before appellate tribunal:

As per section 112(10), every application made before the Appellate Tribunal:

(a) In an appeal for rectification of error or for any other purpose; or

(b) For restoration of an appeal or an application,

shall be accompanied by such fees as may be prescribed. As per rule 110(6), there shall be no fee for application made before the Appellate Tribunal for rectification of errors.

Adjournment:

As per section 113(2), the Appellate Tribunal may, if sufficient cause is shown at any stage of hearing of an appeal, grant time to the parties or any of them and adjourn the hearing of the appeal for reasons to be recorded in writing. Provided that no such adjournment shall be granted more than three times to a party during hearing of the appeal.

Order of appellate tribunal:

As per the section 113(1), the Appellate Tribunal may, after giving the parties to the appeal an opportunity of being heard, pass such orders thereon as it thinks fit, confirming, modifying or annulling the decision or order appealed against or may refer the case back to the Appellate Authority, or the Revisional Authority or to the original adjudicating authority, with such directions as it may think fit, for a fresh adjudication or decision after taking additional evidence, if necessary. As per section 113(3), the Appellate Tribunal may amend any order passed by it so as to rectify any error apparent on the face of the record, if such error is noticed by it on its own accord, or is brought to its notice by the Commissioner or the Commissioner of State tax or the Commissioner of the Union territory tax or the other party to the appeal within a period of 3 months from the date of the order. Provided that no amendment which has the effect of enhancing an assessment or reducing a refund or input tax credit or otherwise increasing the liability of the other party, shall be made under unless the party has been given an opportunity of being heard.

Period of disposing of appeal:

As per section 113(4), the appellate tribunal shall, as far as possible, hear and decide every appeal within a period of 1 year form the date on which it was filled

Communication of Order:

As per section 113(5), the Appellate Tribunal shall send a copy of every order passed under this section to the Appellate Authority or the Revisional Authority, or the original adjudicating authority, as the case may be, the appellant and the jurisdictional Commissioner or the Commissioner of State tax or the Union territory tax. As per rule 113(1), the Appellate Authority shall, along with its order under sub-section (11) of section 107, issue a summary of the order in FORM GST APL-04 clearly indicating the final amount of demand confirmed. (2) The jurisdictional officer shall issue a statement in FORM GST APL-04 clearly indicating the final amount of demand confirmed by the Appellate Tribunal.

Production of additional evidence before the Appellate Authority or the Appellate Tribunal (Rule 112)

The appellant shall not be allowed to produce before the Appellate Authority or the Appellate Tribunal any evidence, whether oral or documentary, other than the evidence produced by him during the course of the proceedings before the adjudicating authority or, as the case may be, the Appellate Authority except in the following circumstances, namely:-

(a) where the adjudicating authority or, as the case may be, the Appellate Authority has refused to admit evidence which ought to have been admitted; or

(b) where the appellant was prevented by sufficient cause from producing the evidence which he was called upon to produce by the adjudicating authority or, as the case may be, the Appellate Authority; or

(c) where the appellant was prevented by sufficient cause from producing before the adjudicating authority or, as the case may be, the Appellate Authority any evidence which is relevant to any ground of appeal; or

(d) where the adjudicating authority or, as the case may be, the Appellate Authority has made the order appealed against without giving sufficient opportunity to the appellant to adduce evidence relevant to any ground of appeal.

(2) No evidence shall be admitted under sub-rule (1) unless the Appellate Authority or the Appellate Tribunal records in writing the reasons for its admission.

(3) The Appellate Authority or the Appellate Tribunal shall not take any evidence produced under sub-rule (1) unless the adjudicating authority or an officer authorised in this behalf by the said authority has been allowed a reasonable opportunity –

(a) to examine the evidence or document or to cross-examine any witness produced by the appellant; or

(b) to produce any evidence or any witness in rebuttal of the evidence produced by the appellant under sub-rule (1).

(4) Nothing contained in this rule shall affect the power of the Appellate Authority or the Appellate Tribunal to direct the production of any document, or the examination of any witness, to enable it to dispose of the appeal.

Appeal to High Court (Section 117)

I. Who can file the appeal:

Any person aggrieved by any order passed by the State Bench or Area Benches of the Appellate Tribunal may file an appeal to the High Court and the High Court may admit such appeal, if it is satisfied that the case involves a substantial question of law. An appeal to the High Court shall be filed in FORM GST APL-08. The grounds of appeal and the form of verification as contained in FORM GST APL-08 shall be signed in the manner specified in rule 26.

II. Time limit for filing of appeal:

Appeal shall be filled within 180 days of from the date on which the order appealed against is received by the aggrieved person and it shall be in such form, verified in such manner as may be prescribed. Provided that the High Court may entertain an appeal after the expiry of the said period if it is satisfied that there was sufficient cause for not filing it within such period.

4. Appeal to Supreme court (Section 118)

I. Who can File appeal:

In pursuance of section 118(1), An appeal shall lie to the Supreme Court

(a) from any order passed by the National Bench or Regional Benches of the Appellate Tribunal; or

(b) from any judgment or order passed by the High Court in an appeal made under section 117 in any case which, on its own motion or on an application made by or on behalf of the party aggrieved, immediately after passing of the judgment or order, the High Court certifies to be a fit one for appeal to the Supreme Court

(The author can be reached at himanshumalhotra446@gmail.com)

(The following article have been compiled from CGST act, CGST rules and appeals and revision mechanism – By CBEC)

Author Bio

Name: Himanshu
Qualification: Student - CA/CS/CMA
Company: N/A
Location: New delhi, New Delhi, IN
Member Since: 09 Dec 2017 | Total Posts: 2

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