Appeals and Revision – Advanced Tax Laws and Practice
Question 1.
The proceedings under the CGST Act, 2017 before the authorities including the Appellate Tribunal can be attended by the “Authorized Representative”. Explain who can act as an authorized representative under the Act.
Answer:
For the purposes of this Act, the expression “authorized representative” shall mean a person authorized by the person referred to in section 116(1) to appear on his behalf, being:-
(a) his relative or regular employee; or
(b) an advocate who is entitled to practice in any court in India, and who has not been debarred from practicing before any court in India; or
(c) any Chartered Accountant, a Cost Accountant or a Company Secretary who holds a certificate of practice and who has not been debarred from practice; or
(d) a retired officer of the Commercial Tax Department of any State Government or Union territory or of the Board who, during his service under the Government, had worked in a post not below the rank than that of a Group-B Gazetted officer for a period of not less than two years. However, such officer shall not be entitled to appear before any proceedings under this Act for a period of one year from the date of his retirement or resignation; or
(e) any person who has been authorized to act as a goods and services tax practitioner on behalf of the concerned registered person.
Question 2.
Define “Adjudicating Authority”
Answer:
Adjudicating Authority
“Adjudicating Authority” means any authority, appointed or authorized to pass any order or decision under this Act, but does not include the Central Board of Excise and Customs, the Revisional Authority, the Authority for Advance Ruling, the Appellate Authority for Advance Ruling, the Appellate Authority and the Appellate Tribunal.
Adjudicating authority thus includes Principal Commissioner of Central Tax, Commissioner of Central Tax, Additional Commissioner of Central tax, Joint/Deputy/Assistant Commissioner of Central Tax etc.
Question 3.
Hema Lubricants Ltd., filed an appeal before the Appellate Tribunal against the order of the Appellate Authority, wherein the issue was revolving around the place of supply.
The Tribunal decided the issue against the company and in favour of the department. The company is of the firm opinion that its view is correct and hence there is need to take the issue to an appellate forum higher than the Appellate Tribunal.
As the Company Secretary, dealing with indirect tax matters, advise the company about filing of appeal before the appropriate forum.
Answer:
Where the supplier or the department is not satisfied with the order passed by the State Bench or Area Benches of the Appellate Tribunal, appeal can be filed before the High Court if the High Court is satisfied that such an appeal involves a substantial question of law.
[Section 117(1) of the CGST Act, 2017] Nevertheless, appeal against orders passed by the National Bench or Regional Benches of the Tribunal can be filed only before the Supreme Court and not before High Court.
As per section 109(5) of the Act, only the National Bench or Regional Bench of the Tribunal can decide appeals where one of the issues involved relates to the place of supply.
Since the issue involved in the given case relates to the place of supply, the appeal in case would have been decided by the National Bench or Regional Bench of the Tribunal. Consequently, Hema Lubricants Ltd., will have to file an appeal before the Supreme Court and not with the High Court.
Question 4.
Briefly discuss whether the following powers vest with the Commissioner (Appeals) under the GST Act, 2017:
(i) Remanding the case back to the adjudicating authority; and
(ii) Condoning the delay in filing appeal before him.
Answer:
(i) No, Commissioner (Appeals) being the first appellate authority does not have power to remand the case back to the adjudicating authority for fresh adjudication. The power is not given to Commissioner (Appeals) by Statute. However, Power to remand has been specifically given to Appellate Tribunal under Section 113 of the CGST Act, 2017.
(ii) Yes, Commissioner (Appeals), if satisfied that the appellant was prevented by sufficient cause from presenting the appeal within the specified period, allow it to be presented within a further period of one month under section 107(4) of the CGST Act, 2017.
Question 5.
What is the jurisdiction of the National (& Regional Benches) & the State (& area benches) of the Tribunal? [Practice Manual]
Answer:
The National Bench or Regional Benches of the Appellate Tribunal shall have jurisdiction to hear appeals against the orders passed by the Appellate Authority or the Revisional Authority in the cases where one of the issues involved relates to the place of supply.
The State Bench or Area Benches shall have jurisdiction to hear appeals against the orders passed by the Appellate Authority or the Revisional Authority in the cases involving matters other than those cases where the issues involved relates to the place of supply.
Question 6.
State the provision and also the amount of pre-deposit required to be made by a registered supplier to file an appeal against the order in each of the following independent cases under the CGST Act, 2017:
(1) Order dated 18th Oct., 2018 passed in the case of M/s RR Ltd. by the Joint Commissioner creating a tax demand of ₹40,00,000. M/s RR Ltd. has admitted ₹5,00,000 as tax liability but intends to file an appeal with the Commissioner (Appeals) against the balance tax demand.
(2) In an order dated 18th Nov., 2018 passed in the case of M/s KK Ltd., the Joint Commissioner of Central Tax has created a tax demand of ₹35,00,000 and also has imposed a penalty of ₹5,00,000. M/s KK Ltd. intends to file an appeal with the Commissioner (Appeals) both against the order creating demand of ₹35,00,000 and order imposing penalty of ₹5,00,000.
Answer:
Section 107(6) of the CGST Act, 2017 requires an appellant filing appeal before the Appellate authority to pre-deposit full amount of tax, interest, fine, fee and penalty as is admitted by him, arising from the impugned order and a sum equal to 10% of the remaining amount of tax in dispute. Considering the said legal position, the pre-deposit to be made in the instant cases shall be as below;
RR Ltd. has to pre-deposit 15,00,000 (admitted tax) and 13,50,000 (i.e. 10% of ₹35,00,000 tax in dispute) in total of amount of ₹ 8,50,000.
In the case of KK Ltd., since no amount of tax or penalty has been admitted by the appellant, it has to pre-deposit 10% of the tax amount i.e. (10% of ₹35,00,000) which comes to ₹3,50,000.
Question 7.
XY Company received an adjudication order passed by the Assistant Commissioner of Central Tax on 2nd December, 2018 under section 73 of the CGST Act, 2017 wherein it was decided as follows:
IGST due ₹7,00,000
Interest ₹25,000
Penalty ₹50,000
XY Company filed an appeal before the Appellate Authority on 28th January, 2019. How much the company has to pay as pre-deposit under section 107(6) of the CGST Act, 2017 if the assessee appeals against part of the demanded amount say Tax ₹4,00,000, interest ₹15,000 and penalty ₹30,000 and admits the balance liability of tax, interest and penalty?
Answer:
Section 107(6) of the CGST Act, 2017 provides that no appeal shall be filed before Appellate Authority, unless the appellant pays:
(a) in full, such part of the amount of tax, interest, fine, fee and penalty arising from impugned order, as is admitted by him; and
(b) 10% of remaining tax in dispute arising from impugned order Thus, since XY Company admits the tax liability of ₹3,00,000 + Interest ₹10,000 and Penalty ₹20,000 it has to make a pre-deposit of:
(i) ₹3,30,000 (i.e. 300000 + 10000 + 20000)
(ii) ₹40,000 (i.e. 10% of 4,00,000)
Total ₹3,70,000
Appeals And Revision Notes
- Sections involved: 107 to 121 of CGST Act.
- Appeals to Appellate Authority
- Revisional Authority and its powers
- Appeals to Appellate Tribunal
- Appeal to High Court
- Appeal to Supreme Court
In respect of the above points, students should know the following:
- Appeal can be filed against which order
- Can Department Appeal
- Can “Place of Supply” matters be appealed
- Appeal Fees
- Time Limit to file an appeal
- Mandatory Pre deposit