Guide On Appeal And Revision Under GST

Guide on Appeal and Revision Under GST

Appeals under any law is an application to a higher court for a reversal of the decision of a lower court or department.
Overview of appeals and revisions can be better understood with the below diagrammatic presentation-

List Of Topics Covered:

Appeal Overview

Appeal Level
Against order of
Appeal to Time Limit for filing AppealForm for filing Appeal
1Adjudicating Authority Appellate Authority For Taxpayer: 3 months (+1 month) For Department: 6 months (+1 month)GST APL – 01
2Appellate Authority Appellate Tribunal 3 months (+ 3 months) GST APL – 05
3Appellate Tribunal High Court 180 days from the date of receipt of the order appealed against GST APL – 08
4High Court Supreme Court
--

Appeal Level

Against order of

Appeal to Time Limit for filing Appeal Form for filing Appeal

1

Adjudicating Authority Appellate Authority For Taxpayer: 3 months (+1 month) For Department: 6 months (+1 month) GST APL – 01

2

Appellate Authority Appellate Tribunal 3 months (+ 3 months) GST APL – 05

3

Appellate Tribunal High Court 180 days from the date of receipt of the order appealed against GST APL – 08

4

High Court Supreme Court

Adjudicating Authority

Section 2(4) defines adjudicating authority to mean any authority appointed or authorized to pass any order or decision under this Act.

However, the following are not covered under the ambit of adjudicating authority:

  • Central Board of Customs & Excise
  • Revisional Authority
  • Authority for Advance Ruling
  • Appellate Authority for Advance Ruling
  • Appellate Authority
  • Appellate Tribunal
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Appeal To Appellate Authority

  • APPEAL TO APPELLATE AUTHORITY BY AGGRIEVED PERSON:
Particulars GST [CGST Section 107(1)]
Appealable Orders Any person aggrieved by any decision or order passed by an Adjudicating Authority under the CGST Act, SGST Act, UTGST Act, IGST Act
Appeal to Appellate Authority [Rule 109A] If the decision or order against which the appeal is to be filed
Order Passed By Appellate Authority
Additional / Joint Commissioner Commissioner (Appeals)
Deputy / Assistant Commissioner or Superintendent Any officer not below the rank of Joint Commissioner (Appeals)
Time Limit 3 months from the date of communication of the order. Delay can be condoned by 1 month.
Certified Copy of Order appealed A certified copy of the order appealed against shall be submitted within 7 days of the filing of the appeal. Final acknowledgment with appeal number shall be issued by the Appellate Authority.
Date of filing of Appeal Situation Date of Filing of Appeal
Certified copy of the decision or order is submitted within 7 days from the date of filing Date of issue of provisional acknowledgment
Submitted after 7 days time Date of submission of such copy
Pre-Deposit of Tax Dues An appeal shall be filed only if the appellant has paid → Full amount of admitted tax dues → Pre-deposit of 10% of disputed dues, subject to a maximum of 25 crores.
  • APPEAL TO APPELLATE AUTHORITY BY DEPARTMENT:
At times, the Department itself is not in agreement with the decision or order passed by the Adjudicating Authority. Section 107(2) provides that in such cases, the Department can file what is commonly known as “Review application/ appeal” with the Appellate Authority. >
Particulars Description
Orders against which application can be filed before the AA The Commissioner may → On his own motion → Upon request from the SGST/ UTGST Commissioner Examine the record of any proceedings in which an Adjudicating Authority has passed any decision or order under the CGST Act or SGST Act or UTGST Act to satisfy himself about the legality or propriety of the said decision/ order.
The time limit for filing the application The Commissioner may, by order, direct any officer subordinate to him to apply to the AA within 6 months from the date of communication of the decision/ order. The AA can condone the delay in filing of appeal by 1 month on sufficient cause for such delay.
Form for Application The application shall be made in GST APL-03 either electronically or otherwise as may be notified by the Commissioner.
Application to be treated as Appeal Such an application shall be dealt with by the AA as if it were an appeal made against the decision/order of the Adjudicating Authority as per Section 107(3).
Pre-Deposit There is no requirement of making a pre-deposit in case of departmental appeal.
  • PROCEDURE BY COMMISSIONER (APPEALS):
1. The opportunity of being heard shall be given to the Appellant. 2. For Additional Grounds of Appeal/ Additional Evidence before Commissioner (Appeals), the Adjudicating Authority should give the opportunity of being heard. 3. Contents of the Order are:

i. Points for determination ii. Decision iii. Reason for decision

4. An order shall be communicated to:

i. Appellant ii. Adjudicating Authority iii. Chief Commissioner iv. Commissioner

  • POWERS OF APPELLATE AUTHORITY:
1. The Appellate Authority can:

i. Conduct such inquiry as may be required ii. Direct the Appellant to produce any document or iii. Examine any witness To enable him to dispose of the appeal.

2. Time Limit: The AA may, whenever possible, hear and dispose of the appeal within 1 year from the date on which it is filed. 3. Appellate Authority can:

i. Pass an order confirming, modifying, or annulling the decision or order appealed against ii. Appellate Authority can pass an order enhancing any fee, penalty or fine in lieu of confiscation after giving a reasonable opportunity of being heard However, the Appellate Authority cannot refer the case back to the Adjudicating Authority.

4. Contents of the Order: The order in writing, disposing of an appeal shall state:

i. Points for determination ii. The decision iii. The reasons for the decision

5. Summary Order: The Appellate Authority shall, along with its order, issue a summary of the order in Form GST APL-04 clearly indicating the final amount of demand confirmed. 6. Communication of Order: The Commissioner (Appeals) / Appellate Authority shall communicate the order passed by him to:

i. Appellant ii. Respondent iii. Adjudicating Authority iv. Jurisdictional Commissioner of CGST v. Jurisdictional Commissioner of SGST / UTGST

7. Binding Nature of Order: Every order passed by Appellate Authority u/s 107 shall, subject to the provision of Section 108, 113, 117, 118, shall be final and binding on the parties.

Revision Of Order By Revisional Authority

  • The GST Laws also provide for the mechanism of revision by the Revisional Authority (RA) of the orders passed by its subordinate officers.
  • The RA may – on his own motion or upon information received by him or on request from the SGST / UTGST Commissioner, call for and examine the record of any proceedings.
  • On examination of the case records if RA is of the view that the decision or order passed under the CGST Act / SGST Act / UTGST Act by any officer subordinate to him is – erroneous, in so far as is prejudicial to the interest of the revenue and is illegal or improper or has not taken into account material facts, he may stay the operation of such decision or order for such period as he deems fit on examination of the case records.
  • After giving the person concerned an opportunity of being heard and after making further inquiries, the RA shall pass such order, including enhancing or modifying or annulling the said decision or order.
  • Every revision order shall be subject to further appeal to the Tribunal, High Court, or Supreme Court.
  • RA shall not exercise the power of revision provided the conditions are satisfied.
  • Where the Revisional Authority decides to pass an order in revision under Section 108 which is likely to affect the person adversely, the Revisional Authority shall serve on him a notice in Form GST RVN-01 and shall give him a reasonable opportunity of being heard.
  • Along with the order under Section 108(1), the RA shall issue a summary of the order in Form GST APL-04 clearly indicating the final amount of demand confirmed.

Following are the orders or decisions that a Revisional Authority cannot review or revise:
→ The order has been subject to an appeal before AA or Tribunal or High Court or Supreme Court
→ The period of 6 months (from date of communication of order) has not yet expired or more than 3 years have expired after the passing of the decision or order sought to be revised
→ The order has already been taken for revision at an earlier stage
→ The order sought to be revised is a revisional order in the first place
(The RA may pass an order on any point which has not been raised and decided in an appeal before AA/ Tribunal/ High Court/ Supreme Court, before the expiry of a period of 1 year from the date of the order in such appeal or before the expiry of a period of 3 years from the date of the initial order, whichever is later.

  • Appellate Tribunal refers to the Goods and Service Tax Appellate Tribunal (GSTAT) constituted under Section 109(1) of the CGST Act, 2017.
  • The law envisages the constitution of a two-tier tribunal –
i. National Level ii. State Level
Tier Jurisdiction
National / Regional Bench If Place of Supply is one of the issues in the dispute
State / Area Bench Issues other than Place of Supply
  • An Appeal from the decision of the National Bench shall lie directly to the Supreme Court and an appeal from the decision of the State Bench will lie to the jurisdictional High Court on the substantial question of law.
Appellate Tribunal
  • As per CGST Section 112, the pre-deposit before Appeal to Appellate Tribunal is:
→ Admitted liability in full plus → 20% of the tax in dispute, subject to maximum Rs. 50 crores (In addition to the amount deposited before AA as pre-deposit) However, there shall be no fee for application made before the Appellate Tribunal for rectification of errors.
  • The Appellate Tribunal to some extend is conferred with the powers of a Civil Court. Any order made by the Appellate Tribunal may be enforced by it in the same manner as if it were a decree made by a court in a suit pending therein, and it shall be lawful for the Appellate Tribunal to send for the execution of its orders to the court within the local limits of whose jurisdiction:
→ In case of an order against a company – The registered office of the company is situated or → In case of an order against any other person – the person concerned voluntarily resides or carries on business or personally works for gain.
  • A person aggrieved by the
→ Order of the Appellate Authority or → Order of the Revisional Authority Could prefer an appeal before the Appellate Tribunal in Form GST APL-05.
  • The appeal can be filed before the Appellate Tribunal within 3 months from the date on which the order sought to be appealed against is communicated to the person preferring the appeal. The Tribunal can condone the delay of up to 3 months beyond the specified time.
  • Though the Appellate Tribunal does have the power to refuse to admit an appeal, it cannot refuse to admit any appeal. It can refuse to admit an appeal where:
→ The tax or ITC involved or → The difference in tax or the difference on ITC or → The amount of fines, fees, or penalty determined by such order does not exceed Rs. 50,000.
  • On receipt of notice of appeal, the other party could prefer a cross objection to the appeal even though he has not preferred an appeal. A Memorandum of Cross Objections has to be filed within 45 days from the date of receipt of notice of appeal in Form GST APL-06 against any part of the order appealed against. The Tribunal can condone the delay of up to 45 days beyond the specified time period.
  • The Tribunal can pass orders confirming, modifying or annulling the decision or order appealed against or refer the case back to the AA or RA or to the original Adjudicating Authority, with such directions as may deem fit, for a fresh adjudication or decision after taking additional evidence, if necessary.
  • Every order passed by the Tribunal shall be final and binding on the parties unless the dispute is taken to a higher appellate forum.
  • The Tribunal can correct its own order for any apparent mistakes but it has no power of review as under terms of Section 113(3). The Tribunal may amend any order passed by it so as to rectify any error apparent on the face of the record if such error is noticed by its own accord or brought to notice by Commissioner or SGST/ UTGST Commissioner or another party to the appeal. No amendment which has the effect of enhancing an assessment or reducing a refund or ITC or otherwise increasing the liability of the other party shall be made unless the other party has been given the opportunity of being heard.

As per Section 115, if the pre-deposit made by the appellant before the AA or the Tribunal is required to be refunded consequent to any order of the AA or the Tribunal, as the case may be, interest as provided under Section 56 (i.e. 9%) shall be payable from the date of payment of the amount (and not from the date of the order or the AA or of the Tribunal) till the date of refund of such amount.

Rule 112 of the CGST Rules lays down that the appellant shall not be allowed to produce before the AA or the Tribunal any evidence, whether oral or documentary, other than the evidence produced by him during the course of the proceedings before the adjudicating authority or AA.

Exceptions:

  • Where adjudicating authority or AA has refused to admit evidence which ought to have been admitted
  • Where the appellant was prevented by sufficient cause from producing the evidence which he was called upon to produce by the adjudicating authority or AA
  • Where the appellant was prevented by sufficient cause from producing before the adjudicating authority or AA any evidence which is relevant to any ground of appeal
  • Where the adjudicating authority or AA has made the order appealed against without giving sufficient opportunity to the appellant to adduce evidence relevant to any ground of appeal.

No additional evidence shall be admitted unless the AA or the Appellate Tribunal records in writing the reasons for its admission.

As per Section 116 of CGST Act, the following persons could act as Authorized Repersentative and appeal before the officer or Appellate Authority or the Tribunal on behalf of the assessee:

  • Relative or regular employee of the assessee
  • An advocate who is entitled to practice in any court in India and who has not been debarred from practice before any court in India
  • Any Chartered Accountant, a Cost Accountant or a Company Secretary who holds a certificate of practice and who has not been debarred from any practice
  • A retired officer of the Commercial Tax Department of any State Government or Union Territory or of the Board who, during his service under the Government, has worked in a post not below the rank than that of a Group-B Gazetted officer for a period of not less than two years. However such officer shall not be entitled to appear before any proceedings under this Act for a period of one year from the date of his retirement or resignation.
  • Any person who has been authorized to act as a GST Practitioner on behalf of the concerned registered person.

Disqualifications:
Section 116(3) states that no person who:
a. Has been dismissed or removed from Government service
b. Is convicted of an offense connected with any proceedings under the CGST Act/ SGST Act / UTGST Act / IGST Act or under any earlier law or under any acts passed by a State Legislature dealing with the imposition of taxes on sale of goods or supply of goods and/or services
c. Is found guilty of misconduct by the prescribed authority
d. Has been adjudged as an insolvent

Shall be qualified to represent any person –
→ For all times in case of persons referred to in a, b and c
→ For the period during which the insolvency continues in case of a person referred to in clause d
→ Any person who has been disqualified under the provisions of the SGST Act / UTGST Act shall be deemed to be disqualified under the CGST Act also.

An appeal shall lie to High Court against an order passed by the State Bench or Area Benches of Tribunal. This means that the orders of the National Bench or Regional Benches cannot be challenged before the High Court. The High Court may admit such appeal if it is satisfied that the case involves a substantial question of law.

An appeal before High Court shall be filed in Form GST APL-08 within 180 days from the date on which the order appealed against is received by the Commissioner of GST or the other party.

Following orders could be challenged before the Supreme Court:
→ An order passed by the National Bench or Regional Benches of the Appellate Tribunal or
→ Judgment on the order passed by the High Court in an appeal made under Section 117 in any case which, on its own motion or on an application made by or on behalf of the party aggrieved, immediately after passing of the judgment or order, the High Court certifies to be fit one for the appeal to the Supreme Court.

Appeals cannot be made for the following decisions taken by a GST officer-

  • An order to transfer the proceedings from one officer to another officer
  • An order to seize or retain books of account and other documents
  • An order sanctioning prosecution under the Act
  • An order allowing payment of tax and other amount in installments

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