CHAPTER XVIII
APPEALS AND REVISION
INTRODUCTION

What do you understand by Appeal?

An Appeal is a continuation of proceedings/orders wherein the entire proceedings/orders are again left open for consideration by the Appellate Authorities.

Brief understanding of Revision and Review?

Revision:

The act of Examining again to remove any defect or grant relief against irregular or improper exercises or non- exercises of jurisdiction. Under the said act the commissioner can also take up suo moto the case for revision under section 264. In some cases where the commissioner of Income Tax can also take up the case for revision under section 263, this is also known as the revision of the order of the Assessing officer which is erroneous and prejudicial to the interest of revenue.

Review:

Re-examination or Re-consideration is an act of looking forward to something again with a view of correction or improvement.

Section 107. Appeal to Appellate Authority

This section deals with Appeal where any person aggrieved by any decision or order passed by CGST Act, the SGST Act, or as the case may be by an adjudicating authority may appeal to such Appellate Authority as may be prescribed within period 3 months from the date on which the said decision or order was communicated.

Whereas, under Section 121, no appeal shall lie against any decision given or passed by an officer of central tax if such decision is taken or order passed related to any of the below following matters:

1. Order of the commissioner or other authority empowered to direct transfer of proceedings from one office to another officer, or

2. Order of the seizure or retention of books of accounts, register, and other documents, or

3. Order sanctioning prosecution under the said section,

Or in the case order passed under section 80. Therefore any order passed under this section shall subject to the provision of section 108 or section 133 and section 117 or section 118 be final and binding on the parties.

Understanding Section 107 with the reference to a case law :

SUJEET JAISWAL
VERSES
UNION OF INDIA, THE G.S.T COUNCIL.THE JOINT COMMISSIONER (APPEALS) STATE TAX, BILASPUR, ASSISTANT COMMISSIONER STATE TAX, RAIGARH
W.P.T No.3 of 2021
Date: 21 January 2021
Hon’ble Shri Justice P.Sam Koshy
For Petitioner: Mr.Sabyasachi Bhudhuri, Advocate
For Respondents: Mr.Ramakant Mishra, Advocate

Condonation of delay in filing appeal before the Appellate Authority – petitioner filed under section 107 of the GST Act, 2017 has been dismissed on the ground of barred by limitation

The Appellate Authority has been given the power to condone the delay of only one month according to the limitation act which says 30 days and not beyond that. Thus, by the simple reading of the provision, it is established the fact that provisions of Section 5 of the Limitation Act would not be governing under the field because of the specific period of limitation and the period for condonation of delay being provided. The original order was dated 15:01:2018. The appeal had to be filed within three months i.e. 15:01:2019, thus for some reason, the appeal would not be done so within the said stipulated 30 days period, and any subsequent filing of the appeal beyond the extended 30 days period, of the appellate authority would not have the power to condone the delay.

Under the fact and the circumstance of the case, it was been led down that there is an upper limit of only one month provided in the statues itself for preferring appeal beyond the prescribed period of three months itself established the fact that beyond that extended period of one month after the expiry of the period of limitation, thus the appellate authority becomes functus officio and shall not be in the position to entertain the appeal nor does he have the power to condone the said delay.

Under this matter, the Hon’ble court doesn’t find any strong ground to be made out by the counsel for the petitioner in the instant case calling for interference to order passed by the Respondent hence the petition case was dismissed on the said ground. As the case of condonation of delay is concerned beyond the limit permissible under the statute came up for consideration before the Hon’ble Supreme Court recently in the case of M/s N.V International vs. State of Assam and others, provisions of Arbitration Act had considered the aspect whether an authority could condone the delay beyond the permissible period under the statutes. Thus, disallowing the contention and dismissing the appeal and do not have the said power to entertain the application for condoning the delay or else it will be defeated under said statutory purpose.

Maintainability of petition – availability of alternative remedy – appeal able of order or not under section 107 of the said act the Hon’ble court is appeal able under section 107 of the said act and no writ petition ought to be entertained in respect thereof- as there is an alternative remedy available to this petitioner, thus court is not inclined to entertain the prayer qua order dated 17th June 2020, the petitioner is at liberty to prefer an appeal in accordance with law before the appropriate forum.

Refund Claim– So far as the second claim of refund of Rs.7,68,938/- is concerned, which was on 23rd January,2020 the same is yet to be decided by the respondents. The concerned respondent-authorities are directed to decide the refund which is applicable dated 23rd January,2020 preferred by petitioner, in accordance with law, rule, regulations and Government policies applicable to the facts of the case within the period of three weeks from today, after giving adequate opportunity of being heard to the concerned party thus the matter was dispose off.

M/S KRISHNA INTERNATIONAL

VERSES

COMMISSIONER DELHI GOODS AND SERVICE TAX

W.P(C) 6231/2020

DATED: 11 SPETEMBER 2020

Hon’ble the Chief Justice and Hon’ble Mr.Justice Prateek Jalan

For The Petition: Mr.Jitender Kr. Jha, Advocate

For The Respondent: Mr. Dhananjaya Mishra, Advocate

Maintainability of petition – availability of alternative remedy – appeal able of order or not under section 107 of the said act the Hon’ble court is appeal able under section 107 of the said act and no writ petition ought to be entertained in respect thereof- as there is an alternative remedy available to this petitioner, thus court is not inclined to entertain the prayer qua order dated 17th June 2020, the petitioner is at liberty to prefer an appeal in accordance with law before the appropriate forum.

Refund Claim- So far as the second claim of refund of Rs.7,68,938/- is concerned, which was on 23rd January,2020 the same is yet to be decided by the respondents. The concerned respondent-authorities are directed to decide the refund which is applicable dated 23rd January,2020 preferred by petitioner, in accordance with law, rule, regulations and Government policies applicable to the facts of the case within the period of three weeks from today, after giving adequate opportunity of being heard to the concerned party thus the matter was dispose off.

M/S NANJUNDAPPA TRADING COMPANY AND ANOTHER
VERSUS
STATE OF U.P AND 2 OTHERS
DATED: 23 SEPTEMBER 2020
Hon’ble Ashwani Kumar Mishra, J.
For the Petitioner: Shubham Agrawal
For the Respondent: C.S.C.

Maintainability of appeal requirement of pre-deposit the petitioner is ready and willing to deposit an additional 20% of the remaining amount of tax in dispute in compliance with the requirements under Section 112 (8) of the Act, hence the petitioner shall deposit 20% of the remaining amount of the tax in dispute in accordance to said section 112 (8) of the act within three weeks from today and in which event, the recovery proceeding for the balance amount shall remain stayed till disposal of instant partition.

It was submitted by the learned counsel for the petitioner side that the Appellate Tribunal under the U.P Goods and Services Tax Act 2017 has not been constituted so far, which resulted in the petitioner having no other alternative remedy except to approach this court in which writ jurisdiction. He further points out that while filing the first appeal, the petitioner had deposited 10% of the disputed amount of the said tax as per the condition for filing the appeal. In furtherance of the remaining amount, he had furnished security. It was further stated that the petitioner is ready and willing to deposit an additional 20% of the remaining amount of the tax in dispute in compliance with the requirement under section 112 (8) of the Act. The further submission is that since the provisions of the Act are not at all attracted to the transaction in question, therefore the imposition of penalty and tax is wholly illegitimate.

Hence, the petition is entertained. The Revenue is already represented, which may file a counter affidavit within three weeks. The petitioner shall deposit 20% of the remaining amount of tax in dispute under section 112(8) of the Act within the weeks from today and in which event, the recovery proceedings for the balance amount shall remain stayed till disposal of the instant petition.

Please feel free to contact me if you need any further information [email protected]

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2 Comments

  1. Anumeha Verma says:

    Hi, Taxguru

    Curenttly I am doing study, I search number of topics related to gst and income tax to clear my doubts and boost my knowledge. you shared valuable knowledge that i required.

    Thanks Again!

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