How to File GST Appeal with Commissioner (Appeal)

By | August 17, 2018
(Last Updated On: August 17, 2018)

Contents

How to File GST Appeal with CIT (Appeal)

GST Appeal Can be Filed with

  1.  Appellate Authority : First appeal before ‘Appellate Authority’.Appellate Authority will be departmental officer. ( Commissioner (appeals) . As per Section 2(8) of CGST Act 2017 “Appellate Authority” means an authority appointed or authorised to hear appeals as referred to in section 107
  2. Tribunal :  Second appeal will be before National Bench  of Appellate Tribunal ( to be called Regional Benches ) if one of the issue relates to ‘place of supply’.If issue does not relate to ‘place of supply’, appeal will lie before State Bench of Appellate Tribunal ( to be called Area Benches). As per Section 2(9) of CGST Act 2017 Appellate Tribunal  means the Goods and Services Tax Appellate Tribunal constituted under section 109;
  3. High Court : Appeal against order of Appellate Tribunal can be before High Court only if substantial question of law is involved.
  4. Supreme Court  : If the matter involves interpretation of ‘place of supply’, appeal lies before Supreme Court and not before High Court.

In this article we will discuss how to file appeals to GST First Appellate Authority.

Relevant sections of GST which you can refer for filing GST Appeal are given below this post.

How to File online GST Appeal to first Appellate Authority

Refer steps to file online GST Appeal

GST Appeal if Order Passed by State or Center GST Officer

GST being implemented in our country is a dual GST i.e. to say every supply attracting the levy will be leviable to both central tax and state tax. 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.

Relevant Definitions for filing GST Appeal

Adjudicating Authority – “Adjudicating authority” means any authority, appointed or authorised 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 Tribunalsection 2(4) of CGST Act 2017.

Appellate Authority : As per Section 2(8) of CGST Act 2017 “Appellate Authority” means an authority appointed or authorised to hear appeals as referred to in section 107 of CGST Act 2017.

Govt has appointed Appellate Authority as per Rule 109A of CGST Rules 2017  Appointment of Appellate Authority.

If the adjudication order is passed by Deputy/Assistant Commissioner, the appeal lies before Additional Commissioner (Appeals).

If the adjudication order is passed by Additional/Joint Commissioner, appeal lies before Commissioner (Appeals)  [ rule 109A (1) of CGST Rules, 2017 inserted w.e.f. 15-11-2017]

Decision and orders against which no Appeal can be Filed under GST

No appeal shall lie against any decision taken or order passed by an officer of central tax if such decision taken or order passed relates to any one or more of the following matters, namely:

(a)an order of the Commissioner or other authority empowered to direct transfer of proceedings from one officer to another officer; or
(b)an order pertaining to the seizure or retention of books of account, register and other documents; or
(c)an order sanctioning prosecution under this Act; or
(d)an order passed under section 80 of CGST Act [ Payment of tax and other amount in instalments ]

[ Refer Section 121 of CGST Act 2017  Non-Appealable decisions and orders   ]

However  writ jurisdiction of High Court and Supreme Court is not affected

When Central Tax Officer or State Tax Officer can not file Appeal under GST

Section 120 (1) of CGST Act 2017 :  Appeal not to be filed in certain cases

The Board may, on the recommendations of the Council, from time to time, issue orders or instructions or directions fixing such monetary limits, as it may deem fit, for the purposes of regulating the filing of appeal or application by the officer of the central tax under the provisions of this Chapter.

[Similarly under section 120(1) of SGST Act, the powers will be exercised by Commissioner of State Tax ]

GST Appeal can not be filed in Civil Courts

section 162 of CGST and SGST Act :- Bar on jurisdiction of civil courts.

Save as provided in sections 117 of CGST Act 2017 and Section 118 of CGST Act, no civil court shall have jurisdiction to deal with or decide any question arising from or relating to anything done or purported to be done under this Act

Note :-

Thus Excluding (High Court and Supreme Court) , civil court has no jurisdiction in GST matters.

Are fees payable while filing GST appeal

No Fees is payable for filing appeal with First Appellate Authority under GST

Who can file appeal to GST First Appellate Authority?

  • GST Appeal by Person :- Any person who is not satisfied with the order passed by an adjudicating authority or officer can appeal to the GST First Appellate Authority .
  • GST Appeal by authorized officer on Order by Commissioner : The Commissioner may, on his own motion, or upon request from the Commissioner of State tax or the Commissioner of Union territory tax, call for and examine the record of any proceedings in which an adjudicating authority has passed any decision or order under this Act or the State Goods and Services Tax Act or the Union Territory Goods and Services Tax Act, for the purpose of satisfying himself as to the legality or propriety of the said decision or order. The Commissioner may by order, direct any officer subordinate to him to apply to the Appellate Authority . [ Note : where  authorised officer makes an application to the Appellate Authority, such application shall be dealt with by the Appellate Authority as if it were an appeal made against the decision or order of the adjudicating authority and such authorised officer were an appellant and the provisions of this Act relating to appeals shall apply to such application.]

Section 107 of CGST Act : Appeals to Appellate Authority ]

Note :-

  1. It is important to note that it is only the aggrieved person who can file the appeal.
  2. The appeal must be against a decision or order passed under the Act.
  3. The Commissioner can not revise order of adjudicating authority , he can only order to file appeal against the order.

Conditions for Filing GST Appeal

Payment of  Tax Liabilities etc 

No appeal can be filed unless the appellant has paid—

(a)in full, such part of the 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 said order, in relation to which the appeal has been filed.

Stay

Where the appellant has paid the amount as mentioned above , the recovery proceedings for the balance amount shall be deemed to be stayed.

 Interest on delayed refund of pre-deposit 

Where an amount deposited by the appellant under section 107(6) or section 112(8) is required to be refunded consequent to any order of the Appellate Authority or of the Appellate Tribunal, interest at the rate specified under section 56 shall be payable in respect of such refund from the date of payment of the amount till the date of refund of such amount – section 115 of CGST Act 2017

 

How to file GST appeals to First Appellate Authority?

Appeal in prescribed form and verified – Every appeal under this section shall be in the prescribed form and shall be verified in the prescribed manner- section 107(5) of CGST Act 2017.

Form to File GST Appeal 

  • GST Appeal by Person : All GST appeals to First Appellate Authority are to be made in Form GST APL-01. along with the relevant documents, either electronically or otherwise as may be notified by the Commissioner.
  • GST Appeal by authorized officer on Order by Commissioner : An application to the Appellate Authority  shall be made in FORM GST APL-03, along with the relevant documents, either electronically or otherwise as may be notified by the Commissioner.
  • Acknowledgement : GST First Appellant Authority will issue a  provisional acknowledgement immediately.

 How to Sign Grounds of GST appeal and the form

The grounds of appeal and the form of verification as contained in FORM GST APL-01 shall be signed in the manner specified in rule 26 of CGST Rules 2017 (Method of authentication)

Where to File GST Appeal

GST Appeal  shall be filed to

(a)the Commissioner (Appeals) where such decision or order is passed by the Additional or Joint Commissioner;
(b)the Additional Commissioner (Appeals) where such decision or order is passed by the Deputy or Assistant Commissioner or Superintendent, 

Time Limit to File GST Appeal

  • If GST Appeal is by Person : GST Appeal shall be filed within 3 months from the date on which the said decision or order is communicated to such person.
    • Condonation of delay in filing appeal : The Appellate Authority may, if he is satisfied that the appellant was prevented by sufficient cause from presenting the appeal within the aforesaid period of 3 months  allow it to be presented within a further period of one month.[section 107(4) of CGST Act 2017]
  • If GST Appeal is by authorized officer on Order by Commissioner : GST Appeal shall be filed  within 6 months from the date of communication of the said decision or order.
    • Condonation of delay in filing appeal : The Appellate Authority may, if he is satisfied that the appellant was prevented by sufficient cause from presenting the appeal within the aforesaid period of 6 months  allow it to be presented within a further period of one month.[section 107(4) of CGST Act 2017 ].

When GST Appeal is treated as Filed

A certified copy of the decision or order appealed against shall be submitted within 7 days of filing the appeal and a final acknowledgement, indicating appeal number shall be issued thereafter in FORM GST APL-02 by the Appellate Authority or an officer authorised by him in this behalf:

However where the certified copy of the decision or order is submitted within seven days from the date of filing the FORM GST APL-01, the date of filing of the appeal shall be the date of the issue of the provisional acknowledgement and

where the said copy is submitted after 7 days, the date of filing of the appeal shall be the date of the submission of such copy.

Note : -The GST appeal shall be treated as filed only when the final acknowledgement, indicating the appeal number, is issued.

Who can Appear for filing GST Appeal

Please refer Section 116 of CGST Act 2017 Appearance by authorised representative

Special Powers for GST appeals to First Appellate Authority

  • Adjournment – The GST First Appellate Authority may adjourn the hearing of the appeal if there is sufficient cause, provided the reasons are recorded in writing. Adjournment will be allowed for a maximum of 3 times to a party during hearing of the appeal.
  • Additional Grounds – The First Appellate Authority  may, at the time of hearing of an appeal, allow an appellant to add any ground of appeal not specified in the grounds of appeal, if it is satisfied that the omission of that ground from the grounds of appeal was not wilful or unreasonable.

Submission of Additional Evidence in GST appeal

The appellant shall not be allowed to produce before the Appellate Authority or the Appellate Tribunal any evidence, whether oral or documentary, other than the evidence produced by him during the course of the proceedings before the adjudicating authority or the Appellate Authority. But there are cases when additional Evidences can be submitted as per  Rule 112 of CGST Rules 2017 Production of additional evidence before the Appellate Authority or the Appellate Tribunal

Decisions of the First Appellate Authority under GST– Points to Noted

Decision of Appellate Authority

The Appellate Authority shall, after making such further inquiry as may be necessary, pass such order, as it thinks just and proper, confirming, modifying or annulling the decision or order appealed against .

The Order-in-appeal has to be a “speaking order” i.e. it should state the points for determination, the decision thereon and the reasons for the decision.

Can matter be remanded to lower authority

Appellate Authority  shall not refer the case back to the adjudicating authority that passed the said decision or order.

Mode of Decision

The order of the Appellate Authority disposing of the appeal shall be in writing and shall state the points for determination, the decision thereon and the reasons for such decision.

Communicating the Decision

The GST First Appellate Authority shall communicate the order passed to the appellant , respondent and the adjudicating authority. A copy of the order will also be sent to the jurisdictional commissioners of CGST and SGST.

Time Limit of the Decision

The GST First Appellate Authority must pass the decision within 1 year from the date of filing the appeal. However, if the order is stayed by an order of a Court or Tribunal, the period of such stay shall be excluded from the 1 year period.

Rectification of Mistakes in Orders

yes authority can rectify mistake in order apparent from record. Refer Section 161 of CGST Act 2017

Potential Detrimental Impacts of the Decision

The GST First Appellant Authority is empowered to pass an order

  • Enhancing the fees or penalty or fine, or
  • Confiscating higher value goods, or
  • Decreasing the refund or input tax credit.
  • Requiring the appellant to pay  tax ,which has not been paid or short-paid or erroneously refunded, or where input tax credit has been wrongly availed or utilised . (where the Appellate Authority is of this opinion)

However, this can be done only if the appellant has been issued a Show Cause Notice (SCN) i.e. a reasonable opportunity has been given to the appellant to show cause against the proposed detrimental order, within the specified time limits.

Appeal against the order of Appellate Authority

An appeal to be filed before Appellate Tribunal against the order passed by Appellate Authority.

Revisional Authority under GST

Under GST, there is a provision kept open for revision of the orders passed by the authorities at each stage. For this purpose a special body called as the Revisional Authority is empowered. As per the rules, the Revisional Authority can, either

  • on his own, or
  • on the request of the Commissioner of SGST / CGST,

examine the records of any proceedings .

When can revision in GST take place?

The examination for the purpose of revision can take place, if he considers that any decision taken by the subordinate officer is erroneous insofar as it is :

  • Prejudicial to the interest of revenue and is
    • Illegal or
    • Improper
  • Being taken without taking into account certain material facts (whether available or not at the time of issuance of the order)
  • Not in line with an observation made by the Comptroller and Auditor General (C & AG) of India

Basis the examination, the Revisional Authority can stay the order for a time period as he deems fit. However, the person concerned will always be given an opportunity of being heard.

Also, he may choose to conduct further examination as he deems fit, and can on the basis of such an examination,

  • enhance,
  • modify or
  • annul

the concerned decision or order.

When is revision under GST not allowed?

The Revisional Authority will not revise the order, under the following circumstances:

  • If the order was already under appeal ( to First Appellate Authority or to Appellate Tribunal or to High Court)
  • If 6 months have not passed from the date of the order by Commissioner  i.e. there is still time left for an appeal
  • If more than 3 years have passed after the passing of the decision or order sought to be revised
  • If the order has already been taken for revision at an earlier stage
  • If the Order has been Passed by Revisional Authority, then it can not be further revised.

However  the Revisional Authority may pass an order on any point which has not been raised and decided in an appeal  referred to  First Appellate Authority or to Appellate Tribunal or to High Court)  before the expiry of a period of one year from the date of the order in such appeal or before the expiry of a period of three years , whichever is later.

In case the aggrieved tax payer is not happy with the decision of the First Appellate Authority under GST, he can progress to the next level of appeal which is the National Appellate Tribunal, which we will discuss in our next post.

Every order passed in revision shall (If no Appeal is filed to Tribunal,High Court and Supreme Court ) be final and binding on the parties.

Reference Material for filing GST Appeal with Commissioner (Appeals)

Section 2(8) of CGST Act 2017 “Appellate Authority

Section 2(9) of CGST Act 2017 Appellate Tribunal 

Section 107 of CGST Act : Appeals to Appellate Authority  

Section 108 of CGST Act 2017 : Powers of Revisional Authority.

Section 121 of CGST Act 2017  Non-Appealable decisions and orders

Rule 108 of CGST Rules 2017 : Appeal to the Appellate Authority

Rule 109 of CGST Rules 2017 : Application to the Appellate Authority

Rule 109A of CGST Rules 2017  Appointment of Appellate Authority.

Rule 112 of CGST Rules 2017 –Production of additional evidence before the Appellate Authority or the Appellate Tribunal

GST Appeals and Revisions Rules Analysis

Appeals and Review Mechanism under GST

GST Appeal GST Ready Reckoner (6th Edition 2018)

 

 

Direct Taxes Ready Reckoner
Service Tax Ready Reckoner
Company Law Ready Reckoner
tax deduction at source
New Books Released on Tax , GST and law

4 thoughts on “How to File GST Appeal with Commissioner (Appeal)

  1. Pingback: GST Appeal : Free Study Material - Tax Heal

  2. Pingback: Topic wise Commentary on GST Act of India - Tax Heal

  3. Pingback: GST APL 01: How to File online GST Appeal to first Appellate Authority - Tax Heal

  4. Pingback: How to file Appeal against GST Demand Order :FAQ and User Manual - Tax Heal

Leave a Reply

Your email address will not be published. Required fields are marked *