Order No. 09/2019-Central Tax Dated: 03rd December, 2019
Recently it has been in news that Justice (Retd.) Sanjaya Kumar Mishra has been elected as the President of GST Appellate Tribunal. The press release by the Ministry of Finance on 6th May, 2024 stated his appointment as ‘beginning of the operationalisation of the GSTAT, a crucial body for resolving GST-related disputes.‘
Does this mean that GST Appellate Tribunal has become operational from the date of the appointment of its President?
Let’s answer the above question. But before that let us understand what is the significance of GST Appellate Tribunal becoming operational.
Due to non-constitution of GST Appellate Tribunal, appeal against order of First Appellate Authority or Revisional Authority could not be made. The taxpayers faced challenges in seeking redressal against unfavourable decisions due to the absence of the such tribunal. To address the situation, the Board came out with Central Goods and Services Tax (Ninth Removal of Difficulties) Order, 2019 dated 3rd December, 2019 and Circular 132/2/2020 – GST dated 18th March, 2020.
To quote Circular 132/2/2020 – GST dated 18th March, 2020, “… the appeal to tribunal can be made within three months (six months in case of appeals by the Government) from the date of communication of order or date on which the President or the State President, as the case may be, of the Appellate Tribunal enters office, whichever is later.”
Operationalisation of GST Appellate Tribunal holds significant importance as it provides a crucial avenue for taxpayers to appeal against orders issued by the First Appellate Authority or Revisional Authority within three months of its operationalisation. Thus, the prescribed time limit of three months to make application to appellate tribunal shall be reckoned from the date on which President or the State President enters office.
Hence, it is seen that operationalisation of GST Appellate Tribunal holds significant importance. Now let us examine whether appointment of President of GST Appellate Tribunal leads to operationalisation of GST Appellate Tribunal. In the ibid circular, it is stated that the prescribed time limit of three months to make application to appellate tribunal shall be reckoned from the date on which President or the State President enters office. Whether the term ‘enters office‘ shall mean from the date of his appointment. Central Goods and Services Tax (Ninth Removal of Difficulties) Order, 2019 dated 3rd December, 2019 specifies that “… the date on which the President or the State President, as the case may be, of the Appellate Tribunal after its constitution under section 109, enters office“. Therefore, only after constitution of the Appellate Tribunal, the President shall be deemed to have entered his office.
Sub-section 1 of section 109 that “The Government shall, on the recommendations of the Council, by notification, establish with effect from such date as may be specified therein, an Appellate Tribunal known as the Goods and Services Tax Appellate Tribunal for hearing appeals against the orders passed by the Appellate Authority or the Revisional Authority.”
Thus, it is clear that GST Appellate Tribunal will be established by the Government by passing a notification on recommendation of the GST Council. Only after when such GST Appellate Tribunal is established, then can the President enter its office. It is from that date the period of three months shall be reckoned for filing of appeals before GST Appellate Tribunal.
Therefore, it can be logically inferred that GST Appellate Tribunal has not become operational from the date of the appointment of its President as he is yet to enter his office – which shall take place only after its constitution by notification in Official Gazette of India.
[P.S – Vide Finance Act, 2023, section 109 was substituted [this section is yet to be notified in Official Gazette of India], which deals with constitution of Appellate Tribunal and Benches thereof. In the substituted section, the concept of State President has been done away with and there shall be only President or Vice-President of the GST Appellate Tribunal and its Benches. The views are presented on the basis of un-notified substituted section 109.]
Conclusion: While the appointment of Justice (Retd.) Sanjaya Kumar Mishra as President of GST Appellate Tribunal marks a crucial milestone, it does not automatically render the tribunal operational. The tribunal’s establishment requires government notification post-GST Council recommendations. Only then can the President assume office, initiating the three-month appeal window for taxpayers. This distinction highlights the importance of official constitution procedures in the GST Appellate Tribunal’s functionality.
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