In this series in first four article author has discussed about provisions of Chapter I in four articles. Those cover preamble, objects, and commencement and definition clauses. These are important for study and interpretation of provisions of other provisions of enactment relating to CGST. These will also be relevant for other GST provisions.
Other articles in the series can be easily searched with different search criteria. In articles search with name of author and / or few words of title of article or series can be used.
The Chapter II is with heading ADMINISTRATION. However it is restricted to appointment, functioning, powers , delegation etc. of officers appointed under the enactment and related issues about powers of State and UT GST officers.
It does not cover powers of the GST Council and Central Government.
GST Council and related provisions of the Constitution were discussed in articles on Chapter I – third article in relation to S.2.(36) and article 279A and some related articles of the Constitution of India.
In case of implementation of any law, provisions relating to authorities are very important. This is because these provision defines, and prescribe powers, limitation on powers. Jurisdiction for any power and manner of exercising of power. Therefore, the provisions should be very clear and stable. Ambiguities and confusions can put a question mark on powers exercised and orders passed. We find that these provisions could be drafted with more clarity and certainness. Word and expressions used may create doubts and difficulties in long-term.
From provision of S.3 with highlights added by author
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CENTRAL GOODS AND SERVICES TAX ACT, 2017
CHAPTER II
ADMINISTRATION
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Officers under this Act.
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3. The Government shall, by notification, appoint the following classes of officers for the purposes of this Act, namely:––
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(a) Principal Chief Commissioners of Central Tax or Principal Directors General of Central Tax,
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(b) Chief Commissioners of Central Tax or Directors General of Central Tax,
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(c) Principal Commissioners of Central Tax or Principal Additional Directors General of Central Tax,
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(d) Commissioners of Central Tax or Additional Directors General of Central Tax,
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(e) Additional Commissioners of Central Tax or Additional Directors of Central Tax,
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(f) Joint Commissioners of Central Tax or Joint Directors of Central Tax,
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(g) Deputy Commissioners of Central Tax or Deputy Directors of Central Tax,
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(h) Assistant Commissioners of Central Tax or Assistant Directors of Central Tax, and
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(i) any other class of officers as it may deem fit:
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Provided that the officers appointed under the Central Excise Act, 1944 (1 of 1944) shall be deemed to be the officers appointed under the provisions of this Act.
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Observations: on Section 3
In most of above entries we find that two type of designations are used. One with Commissioner and another with Director.
It is not clear about what is purpose of keeping two types of designations for the appointment of the same class of officers. For example:
Principal Chief Commissioners of Central Tax or
Principal Directors General of Central Tax,
And similarly in case of other posts of officers. This may cause ambiguity and doubts leading to litigations about jurisdictions when both designations are used in case of different officers. Why matters cannot be kept simple and unambiguous must be in mind of legislators.
From section 4 with highlights added by author:
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Appointment of officers.
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4. (1) The Board may, in addition to the officers as may be notified by the Government under section 3, appoint such persons as it may think fit to be the officers under this Act.
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(2) Without prejudice to the provisions of sub-section (1), the Board may, by order, authorise any officer referred to in clauses (a) to (h) of section 3 to appoint officers of central tax below the rank of Assistant Commissioner of central tax for the administration of this Act.
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Observations on S.4
Power of Board for Appointments - The powers of the Board to appoint officers is discretionary. And is in addition to powers of CG. As per sub-section (1) it appears that Board can appoint all classes of officers as covered by S.3.
Power of Board to delegate power of appointment – This power is also discretionary. Board can delegate and give power to officers mentioned in clauses (a) to (h) that is up to the Rank of Assistant Commissioner for appointment of officers below rank of Assistant Commissioner of central tax. That means any other class of officers which are covered and similar to clause (i) of S.3.
This seems to be a very wide range of powers given to the Board for appointment of Senior officers in addition to powers of the Central Government. And also very wide range of powers of delegation to appoint junior officers below rank of Assistant Commissioner of central tax
However, in link for notifications u/s 4 any notification is not found about appointment of officers and delegation of power of appointment of junior officers. Power of Central Government are to be exercised by notification, therefore, the Board is also to use power by issue of notification because delegated powers are also to be exercised in manner in which original authority can exercise such powers.
Section 5 with highlights:
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From provision
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Observation
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Powers of officers.
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Conditions and limitations are important
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5. (1) Subject to such conditions and limitations as the Board may impose, an officer of central tax may exercise the powers and discharge the duties conferred or imposed on him under this Act.
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Conditions and limitations imposed may also determine jurisdiction also for doing work and manner of doing work by exercise of powers.
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(2) An officer of central tax may exercise the powers and discharge the duties conferred or imposed under this Act on any other officer of central tax who is subordinate to him.
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An officer can discharge duties of his subordinate but not of equal or superior rank. Or of subordinate of any other officer.
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(3) The Commissioner may, subject to such conditions and limitations as may be specified in this behalf by him, delegate his powers to any other officer who is subordinate to him.
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Commissioner may delegate his powers to any other officer who is subordinate to him only. And not to subordinate of any other officer.
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(4) Notwithstanding anything contained in this section, an Appellate Authority shall not exercise the powers and discharge the duties conferred or imposed on any other officer of central tax.
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Appellate authority is to exercise his authority only and cannot exercise power for any other officer.
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From provision
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Observations
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Authorisation of officers of State tax or Union territory tax as proper officer in certain circumstances.
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6. (1) Without prejudice to the provisions of this Act, the officers appointed under the State Goods and Services Tax Act or the Union Territory Goods and Services Tax Act are authorised to be the proper officers for the purposes of this Act, subject to such conditions as the Government shall, on the recommendations of the Council, by notification, specify.
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First limb of section says that State / UT officers are proper officer for CGST Act. However second limb says about conditions which will be prescribed in notification. The conditions shall be as recommended by the GST Council.
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(2) Subject to the conditions specified in the notification issued under sub-section (1),––
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Notification is pre conditions
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(a) where any proper officer issues an order under this Act, he shall also issue an order under the State Goods and Services Tax Act or the Union Territory Goods and Services Tax Act, as authorised by the State Goods and Services Tax Act or the Union Territory Goods and Services Tax Act, as the case may be, under intimation to the jurisdictional officer of State tax or Union territory tax;
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CGST officer issuing an order under CGST Act shall also issue order under State/ UT GST Act under intimation to the jurisdictional officer of State tax or Union territory tax;
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(b) where a proper officer under the State Goods and Services Tax Act or the Union Territory Goods and Services Tax Act has initiated any proceedings on a subject matter, no proceedings shall be initiated by the proper officer under this Act on the same subject matter.
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State / UT GST officer having initiated any proceeding on a subject matter, CGST officer shall not initiate proceeding on the same subject matter. This is to avoid duplicate proceedings.
The concept of ‘ the same subject matter ‘ will cover the assessee / supplier / notice, subject matter of proceedings and related provisions, and the period for which proceeding is initiated and any other factor specific to proceeding initiated.
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(3) Any proceedings for rectification, appeal and revision, wherever applicable, of any order passed by an officer appointed under this Act shall not lie before an officer appointed under the State Goods and Services Tax Act or the Union Territory Goods and Services Tax Act.
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CGST officer having passed any order ,then proceedings for rectification, appeal and revision, wherever applicable, related to such order, shall be only with Central Officer and not any State or UT Act.
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