LITIGATION MANAGEMENT IN GST REGIME (PART -10)

[Dr. Sanjiv Agarwal]

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. 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 appealable order passed under the Act. The Appellate Tribunal [Goods and Services Tax Appellate Tribunal] is the second level of appeal, where appeals can be filed against the orders-in-appeal passed by the Appellate Authority or order in revision passed by revisional authority, by any person aggrieved by such an order-in-appeal/Order in revision.

GST Appellate Tribunals are now in the process of constitution with GST Council recommending the same. The number and location of benches of Appellate Tribunal have already been notified for entire country and rules for eligibility and appointment of President and Members of GSTAT also notified.  It is hoped that Tribunals may start functioning in few months time.

The law also provides that either side (department or assessee), if aggrieved by any order passed by any bench of the Tribunal may file an appeal to the High Court and the High Court may admit such appeal if it is satisfied that the case involves a substantial question of law. It is to be noted that on facts, the tribunal is the final authority.

The law further provides for appeals to the Supreme Court from any judgment or order passed by the High Court, in any case which, on its own motion or on an oral application made by or on behalf of the party aggrieved, immediately after passing of the judgment or order, the High Court certifies to be a fit one for appeal to the Supreme Court.

An attempt has been made to dissect the provisions of GST law in  appeals and related matters in a simple and reader friendly manner in this and next few parts of this litigation management series.

Scope of Appeal

• Appeal is a statutory right
• Appeal is one of the remedies available to the taxpayer (aggrieved person) under GST law
• Other remedies could be revision u/s 108 and / or rectification u/s 161 of the GST law
• What is an Appeal

• it is not defined under GST law
• but it implies an application to a higher court or authority for remedial measure for reversal or modification against any order or decision (impugned order)
• order appealed against must be an appealable order under the law and all orders may not be appealable (as per section 121)
• appeal and appellate order aims to settle tax disputes by giving a decision which may confirm the impugned order or modify it or quash it.

Stages of Appeals under GST

Level	Order passed by……	Appeal to……	Sections of Act
1st	Adjudicating Authority	First Appellate Authority	107
2nd	First Appellate Authority	Appellate Tribunal	111-113
3rd	Appellate Tribunal	High Court	117
4th	High Court	Supreme court	118

Where an aggrieved person should file first appeal

Based on the level of adjudicating authority who has passed the impugned order, appeal under section 107 of CGST Act, 2017 shall be filed before:

Commissioner (Appeals)

• Where decision or order is passed by the Additional or Joint Commissioner

Additional Commissioner (Appeals)

• Where decision or order is passed by the Deputy or Assistant Commissioner or Superintendent.

Appeal to Appellate Authority

(a)  Who can file appeal – Any person aggrieved or department on direction of commissioner

(b)  Order appealed against – Any decision or order passed by an adjudicating authority under the Act

(c)  Time limit to file appeal – 3 months from date of communication of order; delay of upto 1 month condonable; 6 months in case of departmental appeal

(d)  Pre-deposit for filing of appeal – 10% of amount in dispute

(e)  Number of adjournments allowed in hearing – Upto 3 adjournments can be granted for hearing the appeal after recording reasons in writing

(f)   Time limit to decide appeal –Appeal may be decided within a period of one year from the date of filing.

(g)  Remand allowed – No remand to adjudicating authority is allowed.

Appeal to Appellate Tribunal

(a)  Who can file appeal – Any person aggrieved by order passed in first appeal; authorised officer of the department on direction of Commissioner

(b)  Order appealed against – Order passed by appellate authority

(c)  Time limit to file appeal –Within 3 months of communication of order; delay filing upto 3 months allowed on show of sufficient cause; 6 months for departmental appeals

(d)  Pre-deposit for filing of appeal – 20% of amount in dispute

(e)  Number of adjournments allowed in hearing –Upto 3 adjournments can be granted for hearing the appeal

(f)   Time limit to decide appeal – Appeal may be decided as far as possible within a period of one year from the date of filing.

Appeals to High Court and Supreme Court

High court

(a)  Who can file appeal –any person aggrieved by appealable order  

(b)  Order to be appealed against – Order of appellate tribunal involving substantial question of law

(c)  Time limit to file appeal –Within 180 days of communication; delayed filing allowed if sufficient cause shown

Supreme Court

(a)  Who can file appeal - As per the Supreme Court Rules and Code of Civil Procedure

(b)  Order to be appealed against – Order of high court; order of national or regional bench of appellate tribunal involving dispute between two states, or a state and centre regarding nature of supply or place of supply

(c)  Time limit to file appeal -As per the Supreme Court Rules and Code of Civil Procedure.

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