by CA Arup Dasgupta
The author can be reached out at 9831503290 and dgarup@gmail.com
With the 5th Anniversary of GST being crossed, the proceedings for 2017-18 and onwards have started. Many taxpayers are aggrieved with the orders received by them and so are planning to file appeals against them. As many queries are received by the professionals in different forums, this is an attempt to answer some of them.
#FAQ1 : Who can file an Appeal?
As per 107(1) any person aggrieved by any decision or order passed under this Act or the State Goods and Services Tax Act or the Union Territory Goods and Services Tax Act by an adjudicating authority may appeal to such Appellate Authority as may be prescribed.
Therefore in the case of E way bill matters, even if the order is issued in the name of the driver of the vehicle, the supplier can file an appeal as he is aggrieved by the order. Similarly in case of death of proprietor, if an order is passed in the name of the deceased proprietor, his legal heir can also file an appeal against the order.
#FAQ 2 : Within what time the appeal is to be filed?
Reply : Within three months from the date on which the said decision or order is communicated to such person.
# FAQ 3: I have not received the order in mail but the same was uploaded on the portal. Is this a valid communication? What will be considered as the date of communication?
Reply : Yes as per Section 169, (1) Any decision, order, summons, notice or other communication under this Act or the rules made thereunder shall be served by any one of the following methods, namely:-
(a) by giving or tendering it directly or by a messenger including a courier to the addressee or the taxable person or to his manager or authorised representative or an advocate or a tax practitioner holding authority to appear in the proceedings on behalf of the taxable person or to a person regularly employed by him in connection with the business, or to any adult member of family residing with the taxable person; or
(b) by registered post or speed post or courier with acknowledgement due, to the person for whom it is intended or his authorised representative, if any, at his last known place of business or residence; or
(c) by sending a communication to his e-mail address provided at the time of registration or as amended from time to time; or
(d) by making it available on the common portal; or
(e) by publication in a newspaper circulating in the locality in which the taxable person or the person to whom it is issued is last known to have resided, carried on business or personally worked for gain; or
(f) if none of the modes aforesaid is practicable, by affixing it in some conspicuous place at his last known place of business or residence and if such mode is not practicable for any reason, then by affixing a copy thereof on the notice board of the office of the concerned officer or authority who or which passed such decision or order or issued such summons or notice.
Therefore the uploading of the order on the portal is a valid service of notice. The date of uploading on the portal will be considered as the date of communication.
#FAQ 4: I have missed the 3 months deadline to file the appeal. Can I file the appeal now?
Reply : As per 107(4) 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 three months or six months, as the case may be, allow it to be presented within a further period of one month.
So the Appellate Authority may condone the delay for a period of one month and so the appeal can be filed if 4 months have not passed from the date of communication of order if there is sufficient cause. However in this case, an application for condonation of delay is also to be filed along with the main appeal.
# FAQ 5 : I just realised that even the period of condonation of delay has expired. So what are the options available to me?
Reply : As the Appellate Authority cannot go beyond the condonation period to be allowed as per the Statute, the only remedy could be filing a Writ Petition for relief under Article 226. However the Courts have had divergent views on the same and so this could be sought only if there is a genuine reason for seeking relief.
# FAQ 6 : Can I pay the predeposit from Electronic Credit Ledger?
Reply : As per 107 (6) No appeal shall be filed under sub-section (1), 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 ten per cent. of the remaining amount of tax in dispute arising from the said order, 1[subject to a maximum of twenty-five crore rupees], in relation to which the appeal has been filed.
2[Provided that no appeal shall be filed against an order under sub-section (3) of section 129, unless a sum equal to twenty-five per cent. of the penalty has been paid by the appellant.]
Therefore the appellant has to pay all the taxes and interest admitted by him and he also has to pay 10% of the disputed amount as pre deposit. In Jyoti Construction Vs DCCT, GST, Jajpur vide WP 23521 of 2021 , the Hon’ble Odisha HC held that pre deposit has to be paid only from the Electronic Cash Ledger. Following this judgment most of the Appellate Authorities were insisting on payment of pre deposit only from Electronic Cash Ledger.
In Circular 172/2022 dated 6th July 2022, it has been clarified that “any payment towards output tax, whether self-assessed in the return or payable as a consequence of any proceeding instituted under the provisions of GST Laws, can be made by utilization of the amount available in the electronic credit ledger of a registered person” , therefore even pre deposits towards appeals can be paid from the Electronic credit Ledger.
Following the above circular, in Oasis Realty judgment, the Hon’ble Bombay HC held that pre deposit can also be paid from Electronic Credit ledger as it is towards payment of output tax.
# FAQ 7 : An order is passed only for penalty and interest as all taxes have been paid. Will I need to pay any pre deposit?
Reply : No. Pre Deposit is required to be paid only if any tax is due.
# FAQ 8 : Do I need to submit any supporting documents along with Appeal while filing it online?
Reply : As the Appellate authority cannot remand the order to the Adjudicating Authority it is always better to file all relied upon documents which can support the arguments placed in the grounds of appeal by the appellant. However in case any additional information or evidence can also be submitted at the time of Physical Hearing.
# FAQ 9 : After the appeal is filed, do we need to submit the hard copies with the Appellate Authority ?
Reply : As per Rule 108. Appeal to the Appellate Authority.-
(1) An appeal to the Appellate Authority under sub-section (1) of section 107 shall be filed in FORM GST APL-01, along with the relevant documents, either electronically or otherwise as may be notified by the Commissioner, and a provisional acknowledgement shall be issued to the appellant immediately.
(2) 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.
(3) A certified copy of the decision or order appealed against shall be submitted within seven days of filing the appeal under sub-rule (1) 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:
Provided that 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 seven days, the date of filing of the appeal shall be the date of the submission of such copy.
Therefore it is very important that the Certified Copy of the Order duly certified by the Adjudicating Authority needs to be filed with the Appelate authority within 7 days of filing the Appeal. Though there are favourable orders of Hon’ble Calcutta HC stating that an appeal cannot be rejected for a technical reason like non filing of certified copy of order, In some cases appeals have been rejected merely because the Certified Copy of the Order was not furnished within a reasonable time. In case the Order is digitally signed, the same can be ceritified by the Authorised Signatory subject to the approval of Appellate Authority. However in E way bill matters since manual orders are issued in many states, the certififed copy of the Order has to be obtained from the officer who has issued the order.
As it may take to obtain the Certified copy of the orders it is suggested that the applications are made as soon as the orders are received by the RTP.
It is also suggested to file all the documents along with the online acknowledgment with the appellate authority along with the Certified Copy of the Order.
# FAQ 10 : If my appeal is not accepted for any technical reason, can I apply for the appeal once again.
Reply : Yes the earlier appeal needs to be withdrawn by applying for the same on the portal and then a fresh appeal can be filed if the same is not time barred.
# FAQ 11 : Whether any recovery proceedings can be initiated after the appeal is filed?
Reply : As per 107 (7) Where the appellant has paid the amount under sub-section (6), the recovery proceedings for the balance amount shall be deemed to be stayed.
# FAQ 12 : The Revisional Authority has issued notice RVN 01 for revision of the Original Order as he wants to enhance the penalty or tax. Can I file the appeal on the basis of the original order.
Reply : As per 107(16) Every order passed under this section shall, subject to the provisions of section 108 or section 113 or section 117 or section 118 be final and binding on the parties.
Therefore if a notice is already received for revision of the order in original, the appeal cannot be filed on the same, as the order under Section 108 passed by Revisional Authority will be final and binding.
# FAQ 13 : In an appeal against a Refund Rejection order, the Appellate Authority has mentioned correctly in the detailed order that the refund has been allowed. However in the APL 04, by mistake he has mentioned as nil in the refund allowed column. Will I need to file an appeal against this at the GST Appellate Tribunal?
Reply : The appellant would need to file a rectification application under Section 161 stating that this is a mistake apparent from record. On the basis of this application the appellate authority can make the necessary corrections in the APL 04 and then the refund can be processed by the Proper Officer.
# FAQ 14 : IF the order in appeal is not in my favour can recovery proceedings be initiated against me?
Reply : As the next forum that is the GST Appellate Tribunal is not in existence, we would need to write a letter to the Proper officer giving a declaration that an appeal to tribunal will be made within three months from the date of communication of order or date on which the President or the State President, as the case may be, of the Appellate Tribunal enters office, whichever is later as per Circular no 132 dated 18th March 2020.
We can also mention that we are agreeable to pay the balance pre deposit required to be paid for filing of Appeal before the Tribunal if the procedure for the same is enabled on portal, as such payments cannot be made through the amended DRC 03 which has specific reasons for payment of tax.
Disclaimer : The above is only for exchange of thoughts before professionals and does not have legal binding. The Author has stated his opinion in his personal capacity and the publishers may or may not subscribe to such views. Please get it validated with a legal professional prior to reliance. Errors if any are purely co incidental
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