HANDLING LITIGATION (APPEALS) IN GST

[Dr. Sanjiv Agarwal]

Tax law recognizes that on any given set of facts and laws, there can be different opinions or viewpoints. Hence, it is likely that the taxpayer may not agree with the “adjudication order” so passed by the tax officer.  It is equally possible that the Department may itself not be in agreement with the adjudication order in some cases.  It is for this reason that the statute provides further channels of appeal, to both sides.

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.

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.

Litigation in GST Law

The grounds for litigation (and appeal) may arise from one or more of the following:

• a breach of fundamental rights
• a violation of the principles of natural justice
• an excess of jurisdiction
• a challenge to the vires of the statute or delegated legislation
• non-speaking order
• interpretational issues
• procedural issues

Dispute Triggers arising out of interpretation in GST

Disputes can arise between the taxpayers and Revenue (Tax) Authorities arising out of interpretation from one or more of the following:

• Applicability of tax (GST) or not
• Supply / nature of supply
• Taxable or exempt supply
• Exemptions / rate of tax 
• Classification of goods / services (HSN codes)
• Valuation of supply
• Export / import / place of supply
• Reverse charge mechanism
• Time of supply
• Audit & adjudication
• Cancellation of registration
• Advance ruling

Disputes arising out of above factors calls for appeal to appellate authority. Either party can file the appeal.

How to choose a Consultant for handling GST disputes

• GST disputes arising out of any issue may result in filing of appeal before appellate authority including Tribunal and Courts.
• Taxpayers deciding to file the appeal may do so directly on their own or through a professional / consultant.
• Appellate provisions and procedures are highly technical in nature and require a specific skill set and mind set.
• For handling disputes and appeals, taxpayers should select the professional / consultant keeping in mind the following:
  • Interpretative skills
  • Good legal drafting
  • Presentations skills
  • Updated and special knowledge of GST law
  • Experience in handling appellate matters before authorities
  • Sharp argumentative skills
  • Integrity and ethics
  • Proven track record and reputation at bar and bench
  • Delivery of service