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Ways to File an Appeal under GST

Ways to File an Appeal under GST

by Sanjeev Archak

Previously, we spoke about the various Anti-Profiteering rules under GST Law. Today we will be talking about the ways of filing an appeal under GST regime.

Laws, in general, impose two kinds of obligations. The first obligation is related to tax and the second obligation is related to the procedure. Any registered taxpayer’s compliance with these two types of obligation is put to check by the various officers of the law.

Sometimes this entire process might lead to certain situations of non-compliance which further leads to a dispute between the taxpayer and the concerned tax officer. To put these disputes in check, there are appeal mechanisms set in place.

What is an Appeal under GST?

An appeal under GST is an application to a higher court for a reversal of the decision of a lower court. These appeals arise when there are any legal disputes.

A strong appeal under GST mechanism is made in the following cases:-

  • A person is hurt by any decision or order passed against him. Any person hurt by any decision; or
  • An order is passed against him under this Act by an adjudicating authority may appeal to the prescribed First Appellate Authority.

The various steps of Appeal under GST is shown in the image below:

Appeal level Orders passed by Appeal to Sections model law of
1st Adjudicating Authority First Appellate Authority 79
2nd First Appellate Authority Appellate Tribunal 81,82,83,84
3rd Appellate Tribunal High Court 87
4th High Court Supreme Court 88,89

Important Definitions

Adjudicating Authority – As per the Model GST Law, an ‘Adjudicating Authority’ is defined as any authority competent to pass any order or decision under this Act, but does not include the Board, the First Appellate Authority and the Appellate Tribunal. Thus, in a way, any decision or order passed under the Act is an act of “adjudication”.

First Appellate Authority – First Appellate Authority means an authority referred to in section 79.

Appellate Tribunal – Appellate means the National Goods and Services Tax Appellate Tribunal constituted under section 81.

Rules for Filing an Appeal under GST

All appeals under GST must be made on the prescribed forms along with the required fees.

The fee structure is as follows:

  • The full amount of tax, interest, fine, fee and penalty arising from the challenged order, as admitted by appellant; and
  • 10% of the disputed amount

For Serious cases, when disputed tax liability is above 25 crores, the tax authorities can demand a higher pre-deposit up to 25% of the disputed tax amount.

In cases where the Commissioner or an officer of GST is appealing then the fees for an appeal will not be applicable.

Time Limit For Filing Appeal under GST

Every appeal under GST shall be filed within 3 months from the date on which the decision or order sought to be appealed against is communicated to the Commissioner of GST, or the person preferring the appeal.

The First Appellate Authority may allow an appeal to be presented within a further period of one month if he is satisfied that the appellant was prevented by reasonable cause from presenting the appeal within the aforesaid period of 3 months.

Opportunity of Hearing

The First Appellate Authority shall give an opportunity to the appellant of being heard if he so desires.

1. Up to 3 Adjournment of Hearing

The First Appellate Authority may, grant time, from time to time, to the parties or any of them and adjourn the hearing of the appeal for reasons to be recorded in writing. However, no such adjournment shall be granted more than 3 times to a party during a hearing of the appeal.

2. Additional grounds at the time of hearing

The First Appellate Authority may, at the hearing of an appeal, allow an appellant to go into any ground of appeal not specified in the grounds of appeal if he is satisfied that the omission of that ground from the grounds of appeal was not wilful or unreasonable.

Order by First Appellate Authority

The First Appellate Authority shall, after making such further inquiry as may be necessary, pass such order, as he thinks just and proper, confirming, modifying or annulling the decision or order appealed against.The order of the First Appellate Authority disposing of the appeal shall be in writing and shall state the points for determination, the decision thereon and the reasons for the decision.

1. Time limit for passing order

The First 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. If the issuance of the 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.

2. Distribution of copies of order

The First Appellate Authority shall communicate the order passed by him to the appellant and to the adjudicating authority.

A copy of the order passed by the First Appellate Authority shall also be sent to the jurisdictional Commissioner of CGST or the authority designated by him in this behalf and the jurisdictional Commissioner of SGST or the authority designated by him.

Appeal to the High Court

Section 87 provides that either side (department or party) if aggrieved by any order passed by the 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. (Please recall that on questions of facts the tribunal is the final authority).

Exceptional Cases:

In GST, there can be situations (especially in inter-state supplies) where the center and states, or two states, may have a different view. The model law recognizes the need for such disputes to be resolved by the Supreme Court and not by the High Court.

It is provided that no appeal shall lie to High Court against a Tribunal order which relates to a matter where two or more States, or a State and Center, have a difference of views regarding the treatment of a transaction(s) being intra-State or inter-State; or regarding the place of supply. Such appeals will lie directly to the Supreme Court under Section 88.

Some Important Points to be Noted:

a) Appeals to the High Court are to be filed within 180 days, but the HC has the power to condone delay on being satisfied with sufficient cause for the same.

b) Fees shall be as prescribed.

c) On being satisfied that a substantial question of law is involved, the High Court shall formulate that question, and the appeal shall be heard only on the question so formulated. However, the HC has the power to hear the appeal on any other substantial question of law if it is satisfied that the case involves such question.

d) The High Court shall decide the questions of law so formulated and deliver such judgment thereon containing the grounds on which such decision is founded and may award such cost as it deems fit. The High Court may determine any issue which has not been determined by the Tribunal or has been wrongly determined by the Tribunal, by reason of a decision on such questions of law.

e) An appeal filed before the High Court shall be heard by a bench of not less than two Judges, and shall be decided in accordance with the majority opinion.

Where there is no such majority, the points of difference shall be heard by one or more of the other Judges and such points shall be decided according to the opinion of the majority of the Judges who have heard the case including those who first heard it.

Appeal to the Supreme Court

Section 88 provides for appeals to the Supreme Court from any judgment or order passed by the High Court in an appeal made under section 87, in any case which, 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, the High Court certifies to be a fit one for appeal to the Supreme Court.

A (direct) appeal shall also lie to the Supreme Court from any orders passed by the Tribunal which is of the nature discussed in ‘exceptional cases’ paragraph above.

Section 89 provides that the costs of the appeal shall be at the discretion of the Supreme Court.

Non-Appealable Decisions and Orders

In keeping with the spirit of the National Litigation Policy, Section 92 empowers the CBEC (Center) or the State Government to issue (on the recommendation of the Council) orders fixing such monetary limits, as it may deem fit, for the purposes of regulating the filing of departmental appeals.

In essence, this means that the department will ordinarily not file appeals in cases involving amounts below the specified monetary limits.

Section 93 lays down that certain types of decisions or orders shall not be appealable, notwithstanding anything to the contrary in any provision of the Act.

These are under the following circumstances:-

a) An order of the competent authority for transfer of proceeding from one officer to another
b) An order pertaining to the seizure or retention of books of account, register, and other documents
c) An order sanctioning prosecution under the Act
d) An order passed under section 55 (payment of tax in installments)

 

To know more about the structure of an Appeal under GST, talk to our experts at Integra Books today.

 

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