APPEALS TO APPELLATE AUTHORITY UNDER GST

[Dr. Sanjiv Agarwal]

GST implemented in India is a dual GST i.e. to say every supply attracting the levy will be leviable to both Central tax and State tax. So does this mean that if a taxpayer is aggrieved by any such transaction, he will have to approach both the authorities for exercising his right of appeal? The answer is a plain NO. The Act makes provisions for cross empowerment between CGST and SGST/UTGST officers so as to ensure that if a proper officer of one Act (say, CGST) passes an order with respect to a transaction, he will also act as the 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.

Appeal to Appellate Authority - Provisions a Glance

The following table summarizes the provisions in relation to appeal to Appellate Authority in GST law:

S.No.	Action / event	Authority	Form	Time Frame
1	Statutory provision	Section  107	-	-
2	Applicable rule	Rules 26, 108, 109, 109A	-	-
3	Appellate Authority –Commissioner (Appeals); any other officer – not below the rank of Joint Commissioner	Section 107 Rule 109A	-	-
4	Prescribed appeal form	-	GST APL 01 (in triplicate)	-
5	Acknowledgement of appeal	Section 108	GST APL 02	Within 7 days of filing the appeal
6	Appeal by Commissioner	Section 107 Rule 109	GST APL -03	Within 6 months
7	Mandatory pre-deposit – admitted liability plus 10%; 25% in case of penalty u/s 129(3)	Section 107(6)	-	-
8	Stay after pre-deposit	Section 107(7)	-	-
9	Time Limit By aggrieved person By Commissioner	-	-	Within 3 months from the date of communication of OIO Within 6 months from the date of communication of OIO
10	Condonation of delay	-	-	Upto 1 months from the last date of filing appeal
11	Court fee stamp – yes in case of physical filling	Section 107(7)	-	-
12	Remand power of appellate authority – not allowed	Section 107(1)	-	-
13	Additional grounds	107(10)	-	-
14	Appellate order within one year of filing		-	-

Appeal to Appellate Authority

1. Who can file appeal – Any person aggrieved or Department on direction of commissioner
2. Order appealed against – Any decision or order passed by an adjudicating authority under the Act
3. Adjournments – A maximum of three adjournments may be allowed.
4. Time limit to file appeal – 3 months from date of communication of order; delay of upto 1 month condonable; 6 months in case of Departmental Appeal
5. Pre-deposit for filing of appeal – 10% of amount in dispute; 25% in case of penalty under section 129(3) of CGST Act, 2017

(e)     Number of adjournments allowed in hearing – Upto 3 adjournments can be granted for hearing the appeal after recording reasons in writing

(f)      Time limit to decide appeal –Appeal may be decided within a period of one year from the date of filing.

(g)     Remand allowed – No remand to adjudicating authority is allowed.

Appellate Mechanism in GST

Steps of Appeals under GST

Level	Orders passed by…	Appeal to…	Sections of Act
1st	Adjudicating Authority	First Appellate Authority	107
2nd	First Appellate Authority	Appellate Tribunal	109, 110
3rd	Appellate Tribunal	High Court	111-116
4th	High Court	Supreme Court	117-118

 

First Appellate Authority

Appellate Tribunal

High Court

Supreme Court

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 other authority empowered to direct transfer of proceedings from one officer to another officer;

(b)        an order pertaining to the seizure or retention of books of account, register and other documents; or

(c)        an order sanctioning prosecution under the Act; or

(d)       an order passed under section 80 (payment of tax in installments).

The time limit for the party to file an appeal before the Appellate Authority is 3 months from the date of communication of the impugned order. But the Appellate Authority may condone a delay of up to one month, if he is satisfied that there was sufficient cause for such delay.

Section 107 of the CGST Act, 2017, provides provisions for preferring an appeal against the order of the Adjudicating Authority to the Appellate Authority. Section 2(4) of the CGST Act, 2017 defines adjudicating authority to mean any authority, appointed or authorized to pass any order or decision under this Act. However, following are not covered under the ambit of adjudicating authority:

1. Central Board of  Customs and Excise (Board)
2. Revisional Authority,
3. Authority for Advance Ruling,
4.  Appellate Authority for Advance Ruling,
5. The Appellate Authority
6. Appellate Tribunal

Hence, an order passed by any officer other than the revisionary authority as well as other authorities mentioned above could be contested before the Appellate Authority.