GST APPEALS: WHAT ONE SHOULD KNOW

[Dr. Sanjiv Agarwal]

Since the right to appeal is a statutory right, the statute also places reasonable fetters on the exercise of that right. The time limits prescribed by the statute for filing of appeals and the requirement of pre-deposit of a certain sum before the appeal can be heard by the competent authority are examples of such fetters on the statutory right.

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.

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.

Who can file appeal? [Section 107(1)]

As per section 107(1) of the CGST Act, 2017, any person aggrieved by any decision or order passed against him under the Act by an adjudicating authority, may appeal to the prescribed appellate authority.

Thus, an appeal –

     (a)   can be filed by any aggrieved person,

     (b)   can be against any decision or order passed against him,

     (c)   can be filed before appellate authority, and

    (d)   can be preferred against an order passed by an adjudicating authority.

     (e)   can be also be filed by the Department as per authorisation by the Commissioner.

Time limit for filing appeal [Section 107(1), (2)]

Every appeal to appellate authority shall be filed within three months from the date on which the decision or order sought to be appealed against is communicated to the person preferring the appeal. The period of three months shall be reckoned from date of communication of order and not from the date of issuance or dispatch of order.

In case of an appeal filed by the department on the basis of the directions by the Commissioner shall have to be filed within 6 months from date of communication of the decision or order.

Adjournment in Appeal

Maximum 3 adjournments shall be granted to each party on showing reasonable cause that is to be recorded in writing.

Manner of filing appeal [Section 107(5) & Rule 108]

An appeal before the appellate authority shall be filed in prescribed form and verified as prescribed within the stipulated time as per rule 108 of the CGST Rules, 2017.

As per rule 108, appeal shall be filed as under:

(1) An appeal to the Appellate Authority under sub-section (1) of section 107 shall be filed in Form GST APL-01, along with the relevant documents, either electronically or otherwise as may be notified by the Commissioner, and a provisional acknowledgement shall be issued to the appellant immediately.

However, w.e.f. 04.08.2023, vide Notification No. 38/2023-CT dated 04.08.2023, appeal shall be filed electronically. It may be filed manually in Form GST APL-01 along with relevant documents only in following two situations-

(i) the Commissioner has so notified, or

(ii) the same cannot be filed electronically due to non-availability of the decision or order to be appealed against on the common portal.

(2) The grounds of appeal and the form of verification as contained in Form GST APL-01 shall be signed in the manner specified in rule 26.

The appeal shall be treated as filed only when the final acknowledgement, indicating the appeal number, is issued.