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Appeals and Revision: After Studying This Chapter, You Will Be Able To
Appeals and Revision: After Studying This Chapter, You Will Be Able To
APPEALS AND
REVISION
For the sake of brevity, the terms ‘Appellate Authority’, ‘Revisional Authority’, ‘input tax
credit’ have been referred to as ‘AA’, ‘RA’ and ‘ITC’ respectively in this Chapter.
LEARNING OUTCOMES
After studying this Chapter, you will be able to –
identify the various kinds of appellate fora available under the CGST Act
and their hierarchy
explain the various aspects relating to filing of an appeal before the
Appellate Authority by the assessee as well as by the Department and
the provisions relating to revision of orders by the Revisional Authority
appreciate and explain the provisions relating to constitution and
structure of Appellate Tribunal as also the various aspects relating to
filing of an appeal before it by the assessee as well as by the Department
comprehend and explain the concept of mandatory pre-deposit for
filing appeals
explain the various aspects relating to filing of an appeal before the High
Court and the Supreme Court
apply the above and other provisions relating to appeals and revision in
problem solving
1. INTRODUCTION
Tax laws (or any law, for that matter) 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 (by various instruments such as scrutiny, audit,
anti-evasion, etc.), as a result of which, 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.
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.
However, 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.
India has adopted a dual GST i.e., to say every supply attracting the levy will be
leviable to both CGST and SGST. So, does this mean that if a taxpayer is
aggrieved by any such transaction, he will have to approach both the authorities
for exercising his right of appeal? The answer is a plain NO.
The Act makes provisions for cross empowerment between CGST and
SGST/UTGST officers so as to ensure that if a proper officer of one Act (say CGST)
passes an order with respect to a transaction, he will also act as the proper officer
of SGST for the same transaction and issue the order with respect to the CGST as
well as the SGST/UTGST component of the same transaction. The Act also
provides that where a proper officer under one Act (say CGST) has passed an
order, any appeal/review/ revision/rectification against the said order will lie only
with the proper officers of that Act only (CGST Act). So also, if any order is passed
by the proper officer of SGST, any appeal/review/revision/rectification will lie with
the proper officer of SGST only.
Chapter XVIII [Sections 107 to 121] of the CGST Act supplemented with Chapter
XIII [Rules 108 to 116] of the CGST Rules prescribe the provisions relating to
appeals and revision. State GST laws also prescribe identical provision relating to
appeals.
Provisions of appeals and revision under CGST Act have also been made
applicable to IGST Act vide section 20 of the IGST Act.
A brief overview of the provisions covered under the aforesaid sections 107 to
121, are outlined in this chapter.
APPELLATE TRIBUNAL
SUPREME COURT
2. RELEVANT DEFINITIONS
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.
(ii) Time limit for filing appeal
A person aggrieved by any decision/order of
an Adjudicating Authority can file an appeal
before the AA within 3 months from the date
of communication of such decision/order.
The AA can condone the delay in filing of
appeal by 1 month if it is satisfied that there
was sufficient cause for such delay [Section
107(4)].
(iii) Form for appeal to AA by the assessee
The appeal to the AA shall be filed in GST APL-01 either electronically
or otherwise as may be notified by the Commissioner and a
provisional acknowledgement shall be issued to the appellant
immediately.
(iv) Mandatory pre-deposit for filing appeal
No appeal can be filed before the AA unless a specified amount of
pre-deposit is made by the appellant. The concept of pre-deposit has
been discussed separately under Heading No. 7.
B. Application before the AA by the Department
At times, the Department itself is not in agreement
with the decision or order passed by the adjudicating
authority. Section 107(2) provides that in such cases,
the Department can file what is commonly known as
a “review application/appeal” with the Appellate
Authority.
(i) Orders against which the application can be filed before the AA
The Commissioner may, on his own motion, or upon request from the
SGST/UTGST Commissioner, examine the record of any proceedings in
which an adjudicating authority has passed any decision/order under
the CGST Act or SGST Act/UTGST Act to satisfy himself about the
legality or propriety of the said decision/order [Section 107(2)].
notice to show cause against the proposed order and the order
is passed within the time limit specified under section 73 or
section 74.
The Order-in-appeal shall be a “speaking order” i.e., it shall
state the points for determination, the decision thereon and the
reasons for the decision.
The law provides an advisory time limit of 1 year from date of
filing of appeal for the AA to decide the appeal. The period of
stay ordered by any Court or Tribunal shall be excluded in
computing the period of one year.
On disposal of the appeal, the AA shall communicate the order
passed by it to the appellant, respondent and to the
adjudicating authority.
A copy of the order passed by the AA shall also be sent to the
jurisdictional Commissioner or the authority designated by him
in this behalf and the jurisdictional SGST/UTGST Commissioner
or an authority designated by him in this behalf.
Every order passed by the Appellate Tribunal shall be final and
binding on the parties unless the dispute is taken to a higher
appellate forum.
D. Appointment of Appellate Authority
Any person aggrieved by any decision/order passed under GST law or
an officer directed to appeal against any decision/order passed under
said law, may appeal within 6 months from the date of communication
of said decision/order as follows:
If the decision/order against
which the appeal is to be Commissioner
filed, is passed by the Appellate (Appeals)
Additional or Joint Authority
Commissioner
If the decision/order against Any officer not
which the appeal is to be below the rank
Appellate
filed, is passed by the Deputy Authority
of Joint
or Assistant Commissioner or Commissioner
Superintendent (Appeals)
The AA may allow the appellant during the hearing to go in to any ground of
appeal not specified in the grounds of appeal and grant upto 3
adjournments.
The AA may confirm, modify, annul the decision or order appealed against
after making further inquiry, as necessary.
• the date of the decision of the Appellate Tribunal and the date
of the decision of the High Court or
• the date of the decision of the High Court and the date of the
decision of the Supreme Court
shall be excluded in computing the period of limitation of 3 years
where proceedings for revision have been initiated by way of issue of
a notice under section 108 [Section 108(4)].
(ii) When the issuance of a revision order is stayed by the order of a Court
or Tribunal, the period of such stay shall be excluded in computing the
period of limitation of 3 years [Section 108(5)].
(d) subject to the provisions of sections 123 and 124 of the Indian
Evidence Act, 1872, requisitioning any public record or
document or a copy of such record or document from any office;
(e) issuing commissions for the examination of witnesses or
documents;
(f) dismissing a representation for default or deciding it ex parte;
(g) setting aside any order of dismissal of any representation for
default or any order passed by it ex parte; and
(h) any other matter which may be prescribed.
(iii) Order of the Appellate Tribunal may be enforced in the same manner
as if it were a decree made by a court in a suit pending therein. The
Appellate Tribunal can send for execution of its orders to the court
within the local limits of whose jurisdiction,—
(a) in the case of an order against a company, the registered office
of the company is situated; or
(b) in the case of an order against any other person, the person
concerned voluntarily resides or carries on business or
personally works for gain.
(iv) All proceedings before the Appellate Tribunal shall be deemed to be
judicial proceedings within the meaning of sections 193 and 228, and
for the purposes of section 196 of the Indian Penal Code. The
Appellate Tribunal shall be deemed to be civil court for the purposes
of section 195 and Chapter XXVI of the Code of Criminal Procedure,
1973.
7. MANDATORY PRE-DEPOSIT
The right to appeal is a statutory right which operates within the limitation placed on
it by the law. One such limitation flows from the principle that, an appellant must
first deposit the adjudged dues before his further appeal can be heard. However,
often an appellant may succeed in his appeal, and hence it would (in retrospect) be
unfair to saddle him with this financial burden. To balance these factors, tax laws
mandate some “pre- deposit” so as to discourage frivolous appeals and also
safeguard the bonafide interests of both the taxpayers and the revenue.
Section 107(6) provides that no appeal shall be filed before the AA, unless the
appellant has paid—
(a) full amount of tax, interest, fine, fee and penalty arising from the
impugned order, as is admitted by him; and
(b) a sum equal to 10% of the remaining amount of tax in dispute arising from
the impugned order.
The payment of pre-deposit ensures staying of the recovery proceedings for the
balance amount.
Section 112(8) lays down that no appeal can be filed before the Tribunal, unless
the appellant deposits
(a) full amount of tax, interest, fine, fee and penalty arising from the
impugned order, as is admitted by him, and
(b) 20% of the remaining amount of tax in dispute,
in addition to the amount deposited before the AA, arising from the said order, in
relation to which appeal has been filed.
Where the appellant has made the pre-deposit, the recovery proceedings for the
balance amount shall be deemed to be stayed till the disposal of the appeal.
Authority Pre-deposit
Appellate Tribunal Admitted liability in full plus 20% of the tax in dispute,
in addition to the amount deposited before AA as pre-
deposit
(iv) The AA or the Appellate Tribunal shall not take any additional evidence
unless the adjudicating authority or an officer authorised in this behalf by
the said authority has been allowed a reasonable opportunity -
(a) to examine the evidence or document or to cross-examine any witness
produced by the appellant; or
(b) to produce any evidence or any witness in rebuttal of the additional
evidence produced by the appellant.
(v) The provisions of this rule shall not affect the power of the AA or the
Appellate Tribunal to direct the production of any document, or the
examination of any witness, to enable it to dispose of the appeal.
9. APPEARANCE BY AUTHORISED
REPRESENTATIVE [SECTION 116]
Any person who is entitled or required to appear before a GST Officer or the AA
or the Tribunal, in connection with any proceedings under the CGST Act, may
appear through an authorised representative (except when he is required under
the Act to appear personally for examination on oath or affirmation).
(i) Who can be authorized representative?
Broadly an authorised representative can be a relative, a regular employee,
an advocate, a chartered accountant, a cost accountant, a company
secretary, or a GST Practitioner. It is also provided that indirect tax gazetted
officers can appear as authorised representative after one year from
retirement/resignation.
(ii) Disqualifications for authorized representative
The GST law also provides some disqualifications for an authorised
representative. Section 116(3) lays down that no person,—
(a) who has been dismissed or removed from Government service; or
(b) who is convicted of an offence connected with any proceedings under
the CGST Act/ SGST Act/ UTGST Act/IGST Act or under the earlier law
or under any of the Acts passed by a State Legislature dealing with the
imposition of taxes on sale of goods or supply of goods and/or
services; or
(c) who is found guilty of misconduct by the prescribed authority;
The High Court shall decide the questions of law so formulated and
deliver such judgment thereon
containing the grounds on which such
decision is founded and may award
such cost as it deems fit. The High The National/ Regional
Court may determine any issue which Bench of the Tribunal has
has not been determined by the jurisdiction to entertain
Tribunal (State Bench/Area Bench) or appeal if the dispute or
has been wrongly determined by the one of the issues in
Tribunal, by reason of a decision on dispute involves place of
such question of law. supply.
deposit of all tax dues will be required unless stay is obtained from the Supreme
Court pending the disposal of the appeal.
The Supreme Court can vary, confirm or reverse the judgement of the High Court
or the Tribunal as the case may be and may award costs. It can also remand the
matter for fresh consideration.
ANSWERS/HINTS
1. Yes. Any person aggrieved by any order or decision passed by an
adjudicating authority under the CGST Act has the right to appeal to the
Appellate Authority under section 107. The appeal should be filed within 3
months from the date of communication of such order or decision.
However, the Appellate Authority has the power to condone the delay of up
to 1 month in filing the appeal if there is sufficient cause for the delay. The
appeal can be filed only when the admitted liability and 10% of the disputed
(a) full amount of tax, interest, fine, fee and penalty arising from the
impugned order, as is admitted by him; and
(b) 20% of the remaining amount of tax in dispute,
in addition to the amount deposited before the AA, arising from the said order,
in relation to which appeal has been filed.
Where the appellant has made the pre-deposit, the recovery proceedings for the
balance amount shall be deemed to be stayed till the disposal of the appeal.
4. Section 2(99) defines “Revisional Authority” as an authority appointed or authorised
under the CGST Act for revision of decision or orders referred to in section 108.
Section 108 of the Act authorizes such “revisional authority” to call for and
examine any order passed by his subordinates and in case he considers the
order of the lower authority to be erroneous in so far as it is prejudicial to
revenue and is illegal or improper or has not taken into account certain
material facts, whether available at the time of issuance of the said order or not
or in consequence of an observation by the Comptroller and Auditor General
of India, he may, if necessary, can revise the order after giving opportunity of
being heard to the noticee. The “revisional authority” can also stay the
operation of any order passed by his subordinates pending such revision.
The “revisional authority” shall not revise any order if-
(a) the order has been subject to an appeal under section 107 or under
section 112 or under section 117 or under section 118; or
(b) the period specified under section 107(2) has not yet expired or more
than three years have expired after the passing of the decision or order
sought to be revised.
(c) the order has already been taken up for revision under this section at any
earlier stage.
(d) the order is a revisional order
5. The statement is partially correct.
Though the Appellate Tribunal does have the power to refuse to admit an appeal,
it cannot refuse to admit ANY appeal. It can refuse to admit an appeal where –
o the tax or input tax credit involved or
o the difference in tax or the difference in input tax credit involved or
o the amount of fine, fees or penalty determined by such order,
does not exceed ` 50,000.