ADDITIONAL GROUNDS OF APPEAL AND ORDER IN APPEAL IN GST

[Dr. Sanjiv Agarwal]

Additional grounds of Appeal [Section 107(10)]

As per section 107(10) of the CGST Act, 2017, the appellate authority may, at the hearing of an appeal, allow an appellant to go into any ground of appeal not specified in the grounds of appeal, if he is satisfied that the omission of that ground from the grounds of appeal was not wilful or unreasonable. The consideration of any additional grounds(s) is subject to discretion of the appellate authority.

Though it is not mandatory on the part of appellate authority to allow for additional grounds, over and above the original grounds of appeal, it is at the discretion of appellate authority to allow inclusion of any additional ground at a later stage. It would depend on the facts and circumstances of each case subject to satisfaction that such omission was not willful or unreasonable.

Order-in-Appeal (OIA) [Section 107 (11, 12, 14, 15, 16)]

For passing of an order in an appeal by the appellate authority, following provisions of section 107 of the CGST Act, 2017 are relevant:

1. The appellate authority shall, after making such further inquiry as may be necessary, pass such order, as he thinks just and proper, confirming, modifying or annulling the decision or order appealed against.
2. An order enhancing any fee or penalty or fine in lieu of confiscation or confiscating goods of greater value or reducing the amount of refund or input tax credit shall not be passed unless the appellant has been given a reasonable opportunity of showing cause against the proposed order.
3. Where the appellate authority is of the opinion that any tax has not been paid or short-paid or erroneously refunded, or where input tax credit has been wrongly availed or utilized, no order requiring the appellant to pay such tax or input tax credit shall be passed unless the appellant is given notice to show cause against the proposed order and the order is passed within the time limit specified under section 73 or 74 (3 years or 5 years).
4. The order of the appellate authority disposing of the appeal shall be in writing.
5. Order shall state the points for determination, the decision thereon and the reasons for the decision.
6. The appellate authority shall, where it is possible to do so, hear and decide every appeal within a period of one year from the date on which it is filed. However, where the issuance of order is stayed by an order of a court or tribunal, the period of such stay shall be excluded in computing the period of one year.
7. On disposal of the appeal, the appellate authority shall communicate the order passed by him to the appellant, respondent and to the adjudicating authority.
8. A copy of the order passed by the appellate authority shall also be sent to the jurisdictional commissioner or the authority designated by him in this behalf and the jurisdictional commissioner of SGST or the authority designated by him in this behalf.
1. Every order passed by appellate authority shall be final but subject to revision as per section 108 of the CGST Act, 2017, orders of Appellate Tribunal (section 113), orders of High Court (section 117) or orders of Supreme Court (section 118).

As per section 107(11) of CGST Act, 2017, appellate authority may pass the order after making further enquiry if necessary, as he thinks just and proper wherein the order/decision appealed against is—

     (a)   confirmed; or

     (b)   modified; or

     (c)   annulled.

However, he cannot remand back the case but has to pass an appropriate order as above.