AUTHORIZED REPRESENTATIVE IN GST LAW

[Dr. Sanjiv Agarwal]

Meaning and scope of Authorized Representative [Section 2(15)]

“Authorised representative” means the representative as referred to in section 116.

As per section 2(15) of the CGST Act, 2017, ‘authorized representative’ means the representative as referred to in section 116 of the CGST Act, 2017.

As per section 116(1) of the CGST Act, 2017, any person who is entitled or required to appear before a GST officer appointed under the Act, or the appellate authority or the appellate tribunal in connection with any proceedings under the Act, may, otherwise than when required under this Act to appear personally for examination on oath or affirmation, subject to the other provisions can appear by an authorised representative.

Any person who is entitled or required to appear before a GST Officer or the AA or the Tribunal in connection with any proceedings under the Act, may appear through an authorised representative (except when he is required under the Act to appear personally for examination on oath or affirmation).

For this purpose, ‘authorized representative’ has been defined in the CGST Act itself. Broadly, it includes a relative, a regular employee, an advocate, a chartered accountant, a cost accountant, a company secretary, or any person with prescribed qualifications. It is also provided that indirect tax gazetted officers can appear as authorized representative after one year from retirement.

Authorized representative in Other Laws

Authorized representative has been defined in different tax laws as appellate provisions are almost similar within various tax laws.

• As per section 288(2) of Income Tax Act, 1961

For the purposes of this section, ‘Authorised Representative’ means a person authorized by the assessee in writing to appear on his behalf, being:

• 1. 1. A person related to the assessee in any manner, or a person regularly employed by the assessee; or
     2. Any officer of a Scheduled Bank with which the assessee maintains a current account or has other regular dealings; or
     3. Any legal practitioner who is entitled to practice in any civil court in India; or
     4. An accountant; or
     5. Any person who has passed any accountancy examination recognized in this behalf by the Board; or
     6. Any person who has acquired such educational qualifications as the Board may prescribe for this purpose; or
     7. Any person who, before the coming into force of this Act in the Union Territory of Dadra and Nagar Haveli, Goa, Daman and Diu, or Pondicherry, attended before an income tax authority in the said territory on behalf of any assessee otherwise than in the capacity of an employee or relative of that assessee; or
     8. Any other person who, immediately before the commencement of this Act, was an income tax practitioner within the meaning of clause (iv) of sub-section (2) of Section 61 of the Indian Income Tax Act, 1922 (XI of 1992), and was actually practicing as such.
• As per Income Tax (Appellate Tribunal) Rules, 1963

‘Authorised Representative means—

• 1. 1. 1. In relation to an assessee, a person duly authorized by the assessee under section 288 to attend before the Tribunal; and
        2. In relation to an income-tax authority who is a party to any proceeding before the Tribunal, a person duly appointed by the Central Government by notification in the official Gazette as authorized representative to appear, plead and act for such authority in any such proceeding and any other person acting on behalf of the person so appointed.[Income Tax (Appellate Tribunal) Rules, 1963, R2(ii)].
• As per Cestat (Procedure) Rules, 1982

“Authorised representative” in relation to any proceedings before the Tribunal means—

1. a person authorised by the person referred to in sub-section (1) of section 146A of the Customs Act, or as the case may be, sub-section (1) of section 35Q of the Central Excises Act or sub-section (1) of section 101A of the Gold (Control) Act, to appear on his behalf in such proceedings; or
2. a person duly appointed [by the Central Government or by an officer duly authorised in this behalf] as authorised representative to appear, plead and act for the [Commissioner] or Administrator, in such proceedings;

Appearance by Authorized Representative

A person can appear by an authorized representative in any proceedings under the GST law before the following authorities—

(a)  GST officer,

(b)  Appellate authority,

(c)  Appellate Tribunal.

Who can be appointed

As per section 116(2) of the CGST Act, 2017, following persons can be appointed as an authorized representative i.e., a person authorized by the person to appear on his behalf:

1. his relative or regular employee; or
2. an advocate who is entitled to practice in any court in India, and who has not been debarred from practicing before any court in India; or
3. any chartered accountant, a cost accountant or a company secretary, who holds a valid certificate of practice and who has not been debarred from practice; or
4. 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, had 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; or
5. any person who has been authorized to act as a goods and services tax practitioner on behalf of the concerned registered person.

Disqualifications

The GST law also provides for some disqualifications for an authorised representative such as dismissal from government service, conviction under some specified Acts, insolvency, misconduct, etc. Such orders of disqualification are, however, required to be passed after following the principles of natural justice.

As per section 116(3) of the CGST Act, 2017, following categories of persons shall not be qualified to act as an authorized representative:

1. who has been dismissed or removed from government service; or
2. who is convicted of an offence connected with any proceedings under this Act, the State Goods and Services Tax Act, the Integrated Goods and Services Tax Act or the Union Territory Goods and Services Tax Act, or under the existing law or under any of the Acts passed by a State Legislature dealing with the imposition of taxes on sale of goods or supply of goods or services or both; or
3. who is found guilty of misconduct by the prescribed authority;
4. who has been adjudged as an insolvent,

Such disqualifications to act as an Authorised Representative shall operate for the following period:

• Persons dismissed or removed from government - for all times
• Persons convicted of specified offences – for all times
• Insolvent persons – for the period during which the insolvency continues.

But subject to clause (d) of section 116(2) of the GST Act, 2017 i.e. 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, had 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 can be appointed as authorised representative.

Provided that 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.