APPEAL TO HIGH COURT AND SUPREME COURT UNDER MODEL ‘GST’ LAW

[DR.MARIAPPAN GOVINDARAJAN]

Appeal to High Court

Section 87 of the Model Goods and Services Tax Act, 2016 (‘Act’ for short) deals with the procedure in filing appeal before High Court against the order of the Tribunal under Section 83 of the Act.    The High Court may admit such appeal if it is satisfied that the case involves a substantial question of law.

Matters for which no appeal lies

Section 87(2) provides that no appeal shall lie to High Court against an order passed by the Appellate Tribunal if such order relates, among other things, to-

• a matter where two or more States, or a State and Center, have a difference of views regarding the treatment of transaction(s) being intra-state or inter-state; or
• a matter where two or more States, or a State and Center, have a difference of views regarding place of supply.

Limitation

Section 87(3) provides that the appeal before High Court shall be filed within180 days from the date on which the order appealed against is received by the Commissioner or the other party.   Section 87(4) provides that the High Court may admit an appeal after the expiry of the period of 180 days if it is satisfied that there was sufficient cause for not filing the same within that period.

Section 91 provides that in computing the period of limitation prescribed for filing an appeal or application, the day on which the order complained of was served and if the party preferring the appeal or making the application was not furnished with a copy of the order when the notice of the order was served upon hi, the time required for obtaining a copy of such order, shall be excluded.

Procedure

The procedure involved in disposing of an appeal before the High Court is as follows-

• The appeal shall be accompanied by the prescribed fee;
• The appeal shall be in the form of memorandum of appeal precisely stating therein the substantial question of law involved;
• Where the High Court is satisfied that a substantial question of law is involved inany case, it shall formulate that question;
• The appeal shall be heard only on the question of law so formulated by the High Court;
• The respondents shall, at the hearing of the appeal, be allowed to argue that the case does not involve such question;
• The High Court is having power to hear the appeal on any othersubstantial question of law not formulated by it, if it is satisfied that the case involves such question;
• The High Court shall decide the question of law formulated and deliver such judgment containing the grounds on which such decision is founded and may award such cost as it deems fit;
• The High Court may determine any issue which-

• has not been determined by the Appellate Tribunal; or
• has been wrongly determined by the Appellate Tribunal, by reason of a decision on such question of law;

• The appeal shall be heard by a Bench of not less than two Judges of the High Court and shall be decided in accordance with the opinion of such Judges or of the majority, if any, of such Judges;
• If there is no majority, the Judges shall state the point of law upon which they differ and the case shall be heard upon that point only, by one or more of the other Judges of the High Court.Such point shall be decided according to the opinion of the majority of the Judges who have heard the case including those who first heard it;
• Where the High Court delivers a judgment in an appeal filed before it, effect shall be given to such judgment by either side on the basis of a certified copy of the judgment;
• The Code of Civil Procedure, 1908, relating to appeals to the High Court shall, as far as may be, apply in the case of appeals under this Act.

Appeal to Supreme Court

Section 88 and 89 of the Act deals with the procedure for filing appeal before the Supreme Court and disposal of the same.

Section 88(1) provides that an appeal shall lie to the Supreme Court from any Judgment or order passed by the High Court, in an appeal made under Section 87, in any case which, on its own motion or an oral application 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.

Section 88(2) provides that an appeal shall lie to the Supreme Court from any order passed by the Appellate Tribunal where such order is of the nature of the following-

• a matter where two or more States, or a State and Center, have a difference of views regarding the treatment of transaction(s) being intra-state or inter-state; or
• a matter where two or more States, or a State and Center, have a difference of views regarding place of supply.

Section 89(1) provides that the provisions of the Code of Civil Procedure relating to the appeals to the Supreme Court shall, so far as may be, apply in the case of appeals under Section 88 as they apply in the case of appeals from decrees of a High Court.   Nothing in Section 89(1) shall be deemed to affect the provisions of Section 90.

Section 89(2) provides that the costs of the appeal shall be at the discretion of the Supreme Court.  Section 89 (3) provides that where the Judgment of the High Court is varied or reversed in the appeal, effect shall be given to the order of the Supreme Court in the manner provided in Section 87 in the case of the Judgment of the High Court.

Sums due to be paid

Section 90 provides that notwithstanding that an appeal has been preferred to the High Court or the Supreme Court, sums due to the Government as a result of an order passed by the Appellate Tribunal  shall be payable in accordance with the order so passed.

Discussions to this article

[swaminathan venkataraman]

IMPROMPTU

The implications of sec 87 (2) (see under "Matters for which no appeal lies"), in one’s quick perspective, prima facie, have ominous prospects, obviously not intended but seem to have been over-sighted. For, the enactment has the effect of ruthlessly cutting at the very route of the loudly proclaimed aim, and made-to-believe fundamental policy, that GST is intended to accomplish the ideal of ‘one nation, one tax’. And, that has immense potentials to have far reaching dire consequences, - instead of obviating or avoiding the scope, - of inevitable disputes, and prolonged litigation on the ground of constitutional vires / probity/ legal or legitimate propriety.

Open to any law expert, with different thoughts and counter views, based on simple common sense reasoning, to discuss and share, if were to serve the altruistic purpose of public interest!

Should, however, be satisfied with the foregoing critique , in substance, it might be worth taking on suitably at the appropriate level, for a speedy remedial action.