Appeals and Review Mechanism under GST
GST Law and Procedure – GST Law and Procedure [January, 2019]
GST
Chapter Fifty
Appeals and Review Mechanism under GST
Introduction
Tax laws (or any laws, for that matter) impose 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.
= = = = = = = =
Plain text (Extract) only
For full text:-Visit the Source
= = = = = = = =
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.
Appellate Mechanism
A person who is aggrieved by a decision or order passed against him by an adjudicating authority, can file an appeal to the Appellate Authority (AA, for short). It is important to note that it is only the aggrieved person who can file the appeal. Also, the appeal must be against a decision or order passed under the Act. It is to be noted that no appeals whatsoever can be filed against the following orders:-
(a) an order of the Commissioner or o
= = = = = = = =
Plain text (Extract) only
For full text:-Visit the Source
= = = = = = = =
hall not refer the case back to the authority that passed the said decision or order. The AA can also increase the “rigour” of the order appealed against by 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, but this can only be done after the AA has given to the appellant a reasonable opportunity of showing cause against the proposed order. Further, if the AA 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 of the CGST Act, 2017.
The Order-in-appeal has to be a “speaking order” i.e. it should state the points for determination, the deci
= = = = = = = =
Plain text (Extract) only
For full text:-Visit the Source
= = = = = = = =
me Court and an appeal from the decision of the State Bench will lie to the jurisdictional High Court on substantial questions of law.
Appeal to the Tribunal by the aggrieved person is to be filed within 3 months from the communication of the order under appeal. Further, Tribunal has the power to condone delay (of up to 3 months in case of appeals or 45 days in case of cross objections, beyond the mandatory period) on being satisfied that there is sufficient cause for the delay. The Tribunal has the discretion not to admit any appeal involving an amount of Rs. Fifty Thousand or less.
The law also provides for filing of cross-objections by the respondent against such part of the order against which the respondent may initially not have chosen to file an appeal. It is provided that on receipt of notice that an appeal has been filed (by the appellant), the party against whom the appeal has been preferred (i.e. the respondent) may, notwithstanding that he may not have appealed against su
= = = = = = = =
Plain text (Extract) only
For full text:-Visit the Source
= = = = = = = =
portunity) it is also provided that the Tribunal may, if sufficient cause is shown, grant up to 3 adjournments to either side.
Concept of pre-deposit
As mentioned earlier, the right to appeal is a statutory right which operates within the limitations placed on it by the law. One such limitation flows from the principle that an appellant must first deposit the adjudged dues before his further appeal can be heard. However, often an appellant may succeed in his appeal, and hence it would (in retrospect) be unfair to saddle him with this financial burden. To balance these factors, tax laws mandate some “pre-deposit” so as to discourage frivolous appeals and also safeguard the bonafide interests of both the taxpayers and the revenue.
The CGST Act, 2017 require an appellant before AA to pre-deposit full amount of tax, interest, fine, fee and penalty, as is admitted by him, arising from the impugned order and a sum equal to 10% of the remaining amount of tax in dispute arising from the imp
= = = = = = = =
Plain text (Extract) only
For full text:-Visit the Source
= = = = = = = =
dicating authority or the appellate authority. The GST Law provides that in such cases, the Department can file what is commonly known as a “review application/appeal”. The GST Law gives powers to the Commissioner to review any order passed by his subordinates acting either as an adjudicating authority, or the appellate authority or revisional authority. If the Commissioner is of the view that any order passed by such authorities are not legal and proper, he can direct any officer subordinate to him to apply to the competent authority. For example, if the order of adjudicating authority is reviewed, he can order his subordinate to file an appeal before the appellate authority. If the order of the appellate authority or the revisional authority is reviewed, he can direct his subordinate to file an appeal before the Tribunal. The grounds for appeal will be mentioned in his order. The review of the order and the consequent filing of appeal by the subordinate has to be done within a period
= = = = = = = =
Plain text (Extract) only
For full text:-Visit the Source
= = = = = = = =
ther inquiry as may be necessary, pass such order, as he thinks just and proper, including enhancing or modifying or annulling the said decision or order.
The above power is subject to the condition that non-appealable orders and decision cannot be revised. Further the power of revision cannot be exercised if: –
(a) the order has been subject to an appeal before AA or Tribunal or High Court or Supreme Court; or
(b) the period of six months (from the date of communication of order) has not yet expired or more than three years have expired after the passing of the decision or order sought to be revised; or
(c) the order has already been taken for revision at an earlier stage; or
(d) the order sought to be revised is a revisional order in the first place:
If the said decision or order involves an issue on which the Appellate Tribunal or the High Court has given its decision in some other proceedings and an appeal to the High Court or the Supreme Court against such decision of the Ap
= = = = = = = =
Plain text (Extract) only
For full text:-Visit the Source
= = = = = = = =
presentative (except when he is required under the Act to appear personally for examination on oath or affirmation).
For this purpose, “authorised representative” has been defined in the Act itself. Broadly, it includes a relative, a regular employee, an advocate, a chartered accountant, a cost accountant, a company secretary, or any person with prescribed qualifications. It is also provided that indirect tax gazetted officers can appear as authorised representative after one year from retirement.
The GST law also provides for some disqualifications for an authorised representative such as dismissal from government service, conviction under some specified Acts, insolvency, misconduct, etc. Such orders of disqualification are, however, required to be passed after following the principles of natural justice.
Appeal to the High Court
The law provides that either side (department or party) if aggrieved by any order passed by the State Bench or Area Bench of the Tribunal may file an app
= = = = = = = =
Plain text (Extract) only
For full text:-Visit the Source
= = = = = = = =