What is an appeal?
Any appeal under any law is an application to a higher court for a reversal of the decision of a lower court. Appeals arise when there are any legal disputes.
What are disputes?
Tax laws (or any law) impose obligations. Such obligations are broadly of two kinds: tax-related and procedure-related. The taxpayer’s compliance with these obligations is verified by the tax officer (through audit, anti-evasion, examining etc.). Sometimes there are situations of actual or perceived non-compliance. If the difference in views persists, it results into a dispute, which is then required to be resolved.
The initial resolution of this dispute is done by a departmental officer by a quasi-judicial process resulting into the issue of an initial order known by various names -assessment order, adjudication order, order-in-original, etc.
GST Act defines the phrase “adjudicating authority” as any authority competent to pass any order or decision under this Act, but does not include the Board, the First Appellate Authority and the Appellate Tribunal. Thus, in a way, any decision or order passed under the Act is an act of “adjudication”.
Steps of appeals under GST
|Appeal level||Orders passed by….||Appeal to ——-||Sections of Act|
|1st||Adjudicating Authority||First Appellate Authority||107|
|2nd||First Appellate Authority||Appellate Tribunal||109,110|
|3rd||Appellate Tribunal||High Court||111-116|
|4th||High Court||Supreme Court||117-118|
Should every appeal be made to both CGST & SGST authorities?
No. As per the GST Act, CGST & SGST/UTGST officers are both empowered to pass orders. As per the Act, an order passed under CGST will also be deemed to apply to SGST. However, if an officer under CGST has passed an order, any appeal/review/ revision/rectification against the order will lie only with the officers of CGST. Similarly, for SGST, for any order passed by the SGST officer the appeal/review/revision/rectification will lie with the proper officer of SGST only.
General rules for filing GST appeals
All appeals must be made in prescribed forms along with the required fees.
Fee will be-
–The full amount of tax, interest, fine, fee and penalty arising from the challenged order, as admitted by appellant,
–10% of the disputed amount
In cases where an officer or the Commissioner of GST is appealing then fees will not be applicable.
Can an authorized representative appear in court?
Yes. Any person required to appear before a GST Officer/First Appellate Authority/Appellate Tribunal can assign an authorized representative to appear on his behalf, unless he is required by the Act to appear personally.
An authorized representative can be-
- a relative
- a regular employee
- a lawyer practising in any court in India
- any chartered accountant/cost accountant/company secretary, with a valid certificate of practice
- a retired officer of the Tax Department of any State Government or of the Excise Dept. whose rank was minimum Group-B gazetted officer.
- any tax return preparer
Retired officers cannot appear in place of the concerned person within 1 year from the date of their retirement.
Appeal cannot be filed in certain cases
The Board or the State Government may, on the recommendation of the Council, fix monetary limits for appeals by the GST officer to regulate the filing of appeal and avoid unnecessary litigation expenses
Can all decisions be appealed against?
No. Appeals cannot be made for the following decisions taken by a GST officer-
- An order to transfer the proceedings from one officer to another officer
- An order to seize or retain books of account and other documents; or
- An order sanctioning prosecution under the Act; or
- An order allowing payment of tax and other amount in installments
A person unhappy with any decision or order passed against him under GST by an adjudicating authority can appeal to the First Appellate Authority.