This article is presented by Himani Sharma, a CS Finalist from Institute of Company Secretaries of India.
Like any other law, there are appeals under GST for both the taxpayer and the adjudicating authority as on any given set of facts and laws, there can be different opinions or viewpoints which can be tax-related or procedure-related.
The right to appeal being statutory right, therefore the statue also places reasonable fetters on the exercise of same. Therefore it becomes pertinent to understand the mechanism of appeals under GST.
WHO CAN FILE AN APPEAL
Appeal can be filed either by a taxpayer or tax officer. It is likely that the taxpayer may not agree with the adjudication order passed by the tax officer. Similarly, it is equally possible that the Department may itself not be in agreement with the adjudication order in some cases.
In case of taxpayer, it is imperative to note that only the aggrieved person can file an appeal to the Appellate Authority. Aggrieved person means who is aggrieved by a decision or order passed against him by an adjudicating authority. Further, the appeal must be against a decision or order passed under the GST Act which can be tax related or procedural in nature. However, there are certain orders against which appeal cannot be filed.
NO APPEALS CAN BE FILED AGAINST CERTAIN ORDERS
1.An order of the Commissioner or other authority empowered to direct transfer of proceedings from one officer to another officer.
2.An order pertaining to the seizure or retention of books of account, register and other documents.
3.An order sanctioning prosecution under the GST Act.
An order passed under section 80 (i.e. payment of tax in instalments).
LEVELS OF APPEALS UNDER GST
There are four levels at which aggrieved person can appeal against the impugned order.
Level 1:-Appeal to Appellate Authority against the orders passed by Adjudicating authority
Section 107 of the CGST Act provides for mechanism of filing appeal by aggrieved person against the orders passed by adjudicating authority.
Time Limit:- The time limit to file an appeal before the Appellate Authority (“AA” for short) is 3 months from the date of communication of the impugned order. The AA may condone a delay of upto 1 month in case of sufficient cause for such delay.
Fees for filing appeal:- The aggrieved person is require to pre-deposit fees for filing appeal which includes full amount of tax, interest, fine, fee, penalty and sum equal to 10% of the remaining amount of tax in dispute arising from the impugned order.
Principles of Natural Justice to be adhered:- The AA has to provide hearing to the appellant, allow reasonable adjournments (not more than 3), permitting additional grounds (if found reasonable), etc.
Order by AA:- AA may confirm, modify or annul the decision or order appealed against but shall not refer the case back to the authority that passed the said decision or order. It should be a speaking order i.e. stating points for determination, the decision thereon and the reasons for the decision.
Level 2:- Appeal to Tribunal against the orders passed by Appellate Authority
The Tribunal is the second level of appeal, where appeals can be filed against the orders-in-appeal passed by the AA. Section 109 & 113 of the CGST Act provides the mechanism for same.
Two Tier Tribunal:- GST law has envisaged constitution of a two tier Tribunal namely
- National Bench/Regional Benches:- Appeal against order wherein dispute is related to place of supply is to be filed against such bench.
- State Bench/ Area Benches:- Appeal against order wherein dispute is related to issue other than place of supply is to be filed against such bench.
Cross Objection:- 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.
Time Limit:- Time limit to file appeal is within 3 months from the communication of the order under appeal. The Tribunal may condone a delay for further 3 months in case of appeal and 45 days in case of cross objections in case of sufficient cause for such delay.
Fees for filing appeal:- The aggrieved person is require to pre-deposit fees for filing appeal which includes full amount of tax, interest, fine, fee, penalty and a sum equal to 20% of the remaining amount of tax in dispute in addition to the amount deposited before the AA arising from the said order in relation to which appeal has been filed.
Order by Tribunal:- In case any appeal filed involving an amount of INR 50,000 or less, the Tribunal has the discretion not to admit said appeal. The principles of natural justice and speaking order must be adhered by the Tribunal while passing the order.
Level 3:- Appeal to High Court against the orders passed by Tribunal
Section 117 of the CGST Act provides for mechanism of filing appeal by aggrieved person against the orders passed by Tribunal.
Substantial Question of Law:- An appeal against any order passed by the State Bench or Area Bench of the Tribunal can be filed to High Court only if the case involves a substantial question of law. Thus, Tribunal is the final authority on issues involving facts.
Time Limit:- Appeals to the High Court can be filed within 180 days. However, HC has the power to condone delay on being satisfied of sufficient cause for the same.
Level 4:- Appeal to Supreme Court against the orders passed by High Court
Section 118 of the CGST Act provides for mechanism of filing appeal to Supreme Court. The law provides for appeals to the Supreme Court from any judgment or order passed by the High Court. A (direct) appeal shall also lie to the Supreme Court from any orders passed by the National/Regional Bench of the Tribunal.
Confiscation order must be passed after application of mind – Gujrat HC in the case of India Logistics & Cargo Movers Vs. State of Gujrat  [GUJRAT]
The High Court observed that the impinged order is totally bereft of any reasons, in the absence of which the order stands vitiated due to non-application of mind on the part of the maker of order. The High Court called such order as a non-speaking order since the order was passed without considering the explanations tendered by the affected parties and without assigning the reasons.
Condonation of delay in filing appeal against time barred order – Rajasthan HC in the case of Ataullah Construction (P) Ltd.  [RAJASTHAN]
The asseesee learned about the order through telephonic call for recovery of demand. The assessee thereafter vide its letter requested the copy of order from the Adjudicating Authority and received the certified copy of the order. Subsequently assessee filed appeal against the impugned order within one month of the receipt of order. However, the impugned order was passed eight months ago, therefore Commissioner (A) dismissed the appeal on the ground of limitation without going into the merits of the case.
Aggrieved by the order of Commissioner (A), assessee went to High Court wherein the Hon’ble court condoned the delay in filing the appeal.
Appeals under GST Appeals under GST Appeals under GST Appeals under GST Appeals under GST Appeals under GST Appeals under GST Appeals under GST Appeals under GST Appeals under GST Appeals under GST