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July 16, 2020

Know all about Appeal Proceedings under GST

by Rubina Dsouza in GST

Know all about Appeal Proceedings under GST

Introduction

An appeal basically means applying to the higher court for reversing, changing or modifying the decision of a lower court. GST provisions can sometimes be complex considering it is an integrated tax on the supply of goods or services. GST law has provided a mechanism to simplify the process of appeal so that grievances are resolved effectively. Let us refer to this article to understand the appeal provisions covered under GST.

Who can appeal to the Appellate Authority (AA)?

A person, aggrieved by a decision or order passed against him by an adjudicating authority, can file an appeal to the AA. 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.

Can the Commissioner appeal to the AA?

Yes, the Commissioner can appeal within 6 months from the date of order. The officer will examine the record of the order for its legality or propriety based on the appellant’s motion or on a request from the Commissioner. The Commissioner can then direct his subordinate officer to apply to the First Appellate Authority within 6 months from the date of the order.

Can an appeal to the AA be adjourned?

The First Appellate Authority may adjourn the hearing of the appeal (max 3 time) if there is sufficient cause. The reasons will be recorded in writing.

Are there any cases where an appeal cannot be sought?

No appeals whatsoever can be filed against the following orders:-

  1. Order directing transfer of proceedings from one officer to another officer
  2. Order pertaining to the seizure or retention of books of account, register and other documents
  3. Order sanctioning prosecution under the Act
  4. Order allowing payment of tax in installments

Can an authorized representative appear in court?

Any person required to appear before a GST Officer/First Appellate Authority/Appellate Tribunal can assign an authorized representative to appear on his behalf, unless he is required by the Act to appear personally. An authorized representative can be-

  1. a relative
  2. a regular employee
  3. a lawyer practising in any court in India
  4. any chartered accountant/cost accountant/company secretary, with a valid certificate of practice
  5. a retired officer of the Tax Department of any State Government or of the Excise Dept whose rank was minimum Group-B gazetted officer.
  6. any tax return preparer

What is the time limit within which an application for appeal can be filed before the AA?

The time limit for the party to file an appeal before the AA is 3 months from the date of communication of the respective order.

Is any provision available if there is any delay for filing application of appeal to the AA?

AA may condone a delay of up to one month from the due date of filing appeal, if he is satisfied that there was sufficient cause for such delay.

Within how much time should an order of appeal be passed by the AA?

The law provides a time limit of 1 year from date of filing of appeal for the AA to decide the appeal.

What are the salient features of an order passed by AA?

  1. The AA can confirm, modify or annul the decision
  2. The AA cannot refer the case back to the authority
  3. Any order increasing any fee/penalty/fine or confiscating higher value goods or decreasing the refund or input tax credit (ITC) will be passed only after a reasonable opportunity of showing cause.
  4. Any order for payment of unpaid, short paid tax, wrong refunds or ITC wrongly availed will be passed only after the appellant is given show cause notice
  5. The order passed shall be communicated to the appellant and the adjudicating authority.
  6. A copy of the order will also be sent to the jurisdictional Commissioners of CGST and SGST.

Is any solution available to a person who is aggrieved with the order of the AA?

An appeal against the orders passed by the AA can be filed with the Tribunal by the aggrieved party.

The law envisages constitution of a two tier Tribunal:-

i. National/Regional Bench – If place of supply is one of the issues in dispute, then the National/Regional benches of the Tribunal will have jurisdiction to hear the appeal.

ii. State/Area Bench – If the dispute relates to issues other than the place of supply, then the State/Area Benches will have the jurisdiction to hear the appeal.

An appeal from the decision of the National Bench will lie directly to the Supreme Court and an appeal from the decision of the State Bench will lie to the jurisdictional High Court on substantial questions of law.

What do you mean by a memorandum of cross objections?

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 (respondent) file a memorandum of cross-objections against any part of the order appealed against within 45 days.

What is the time limit within which an application for appeal can be filed before the Tribunal?

Appeal to the Tribunal by the aggrieved person is to be filed within 3 months from the communication of the order under appeal.

Is any provision available if there is any delay for filing application of appeal to the Tribunal?

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.

Is there any monetary limit below which an appeal cannot be accepted?

The Tribunal has the discretion not to admit any appeal involving an amount of Rs. 50,000 or less.

What is the concept of pre deposit under appeal?

The GST law mandates some “pre-deposit” before an appeal can be heard so as to discourage frivolous appeals and also safeguard the interests of both the taxpayers and the revenue.

Amount of pre-deposit is to be as follows:-

Appeal BeforePre-deposit
AAFull amount of admitted tax, interest, fine, fee and penalty + 10% of the remaining amount of tax in dispute
TribunalFull amount of admitted tax, interest, fine, fee and penalty + 20% of the remaining amount of tax in dispute (this amount is in addition to the amount deposited before the AA)

Can an appeal be filed to the High Court?

  1. If aggrieved by any order passed by the State/Area Bench of the Tribunal may file an appeal to the High Court.
  2. High Court may admit such appeal if it is satisfied that the case involves a substantial question of law.
  3. The tribunal is the final authority, if the case involves a substantial question of fact.

What is the time limit within which an application for appeal can be filed before the Tribunal?

Appeal to the High Court by the aggrieved person is to be filed within 180 days from the communication of the order under appeal. HC has the power to condone delay on being satisfied of sufficient cause for the same.

Can an appeal be filed to the Supreme Court?

  1. Appeals to the Supreme Court can be filed from any judgment or order passed by the High Court.
  2. The High Court on its own motion or on an oral application made by or on behalf of the party aggrieved, immediately after passing of the judgment or order, certifies to be a fit for appeal to the Supreme Court.
  3. A (direct) appeal shall also lie to the Supreme Court from any orders passed by the National/Regional Bench of the Tribunal.

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