Appeals, Review and Revision in GS

Appeals, Review and Revision in GST 

Q 1. Whether any person aggrieved by any order or decision passed against him has the right to appeal? 

Ans. Yes. Any person aggrieved by any order or decision passed against him has the right to appeal. It must be an order or decision passed by an “adjudicating authority”. However, some decisions or orders (as provided for in Section 93) are not appealable. 

Q 2. When Commissioner of CGST feels that the order passed is not legal and proper, whether he can revise the order himself?. 

Ans. No. The Commissioner of CGST cannot revise the order. In the model law, for CGST and SGST, there are different provisions in this regard. For CGST, as per Section 79(2), the Commissioner of CGST if he finds an order or decision (passed by an adjudicating authority) to be not legal or proper, can pass an order setting out the points for determination where he is of the view that the order is not legal and proper and directing a GSTofficer sub-ordinate to him to file an application to First Appellate Authority (FAA). Such application is then treated by the FAA as if it were an appeal. 

Q 3. What is the time limit to file appeal to First Appellate Authority? 

Ans. The time limit is fixed as 3 months from the date of communication of order or decision. 156 157 

Q 4. Whether this time limit applies even for the departmental appeal/application filed consequent to order of Commissioner of CGST?

 Ans. Yes. It applies even for such applications filed which are to be treated as appeal and all the provisions of appeal are made applicable for such application as well. 

Q 5. Whether the first appellate authority has any powers to condone the delay in filing appeal? 

Ans. Yes. He can condone a delay of upto one month from the end of the prescribed period of 3 months for filing the appeal (3+1), provided there is “sufficient cause” as laid down in the proviso to section 79(4). 

Q 6. Whether the first appellate authority has any powers to allow additional grounds not specified in the appeal memo? 

Ans. Yes. He has the powers to allow additional grounds if he is satisfied that the omission was not wilful or unreasonable. 

Q 7. The order passed by First Appellate Authority has to be communicated to whom? 

Ans. First appellate authority has to communicate the copy of order to the appellant and the adjudicating authority with a copy to jurisdictional Commissioner of CGST and SGST. 

Q 8. What is the amount of mandatory pre-deposit which should be made alongwith every appeal? 

Ans. 10% of amount in dispute (however, for SGST, there 156 157 are additional provisions for which the model law may be referred to, see question no 12 and 13).

 Q 9. What is the amount in dispute? Ans. As per explanation to Section 79(6) of MGL, the expression “amount in dispute” shall include–

 (i) amount determined under section 46 or 47 or 48 or 51; 

(ii) amount payable under rule-------of the GST Credit Rules 201…; and 

(iii) amount of fee levied or penalty imposed. 

Q 10. Whether in an appeal the FAA can pass an order enhancing the quantum ofduty/fine/penalty/reduce the amount of refund/ITC from the one passed by the original authority? 

Ans. The FAA is empoweredto pass an order enhancing the fees or penalty or fine in lieu of confiscation or reducing the amount of refund or input tax credit provided the appellant has been given reasonable opportunity of showing cause against the proposed detrimental order. (First Proviso to Section 79(10)). In so far as the question of enhancing the duty or deciding wrong availment of ITC is concerned, the FAA can do so only after giving specific SCN to the appellant against the proposed order and the order itself should be passed within the time limit specified under Section 51. (Second Proviso to Section 79(10). 158 159 

Q 11. (only for SGST law) What is the provision relating to pre-deposit before filing appeal to file appeal to First Appellate Authority under SGST? 

Ans. 10% of the amount in dispute has to paid before filing appeal. This is common for both CGST and SGST. However, for SGST, in addition to this 10%, the appellant has to also pay “ in full, such part of the amount of tax, interest, fine, fee and penalty arising from the impugned order, as is admitted by him” Further, if the Commissioner of SGST considers any case to be a “serious case”, the departmental authority can apply to the first Appellate Authority for ordering a higher amount of pre-deposit not exceeding 50% of the amount in dispute. 

Q 12. (only for SGST law) What is the meaning of “serious case”? 

Ans. It is defined to mean a case involving a disputed tax liability of not less than Rs. 25 Crores and where the Commissioner of SGST is of the opinion (for reasons to be recorded in writing) that the department has a very good case against the taxpayer.

 Q 13. Can the Commissioner of SGST revise any order passed under the Act by his subordinates? 

Ans. Yes. Section 80(1) of SGST Act authorises Commissioner 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 158 159 to revenue, he can revise the order after giving opportunity of being heard to the noticee. 

Q 14. Can the Commissioner of SGST order for staying of operation of any order passed by his subordinates pending such revision? 

Ans. Yes. 

Q 15. Are there any fetters to the powers of Commissioner under SGST to revise orders ofsubordinates? 

Ans. Yes. The Commissioner shall not revise any order if (a) the order has been subject to an appeal under section 79 or under section 82 or under section 87 or under section 88; or (b) more than three years have expired after the passing of the decision or order sought to be revised. For details of these and some other “fetters”, please refer to Section 80 of the MDL. 

Q 16. When the Tribunal is having powers to refuse to admit the appeal? 

Ans. In cases where the appeal involves – • tax amount or • input tax credit or • the difference in tax or • the difference in input tax credit involved or • amount of fine, 160 161 • amount of fees or • amount of penalty ordered less than Rs. 1,00,000/-, the Tribunal has discretion to refuse to admit such appeal.(Section82(2) of MGL) 

Q 17. What is the time limit within which appeal has to be filed before the Tribunal? 

Ans. 3 months from the date of receipt of the order appealed against. 

Q 18. Can the Tribunal condone delay in filing appeal before it beyond the period of 3 months? If so till what time? 

Ans. Yes the Tribunal has powers to condone delay of any period of time beyond the period of 3 months provided sufficient case is shown by the appellant for such delay. 

Q 19. What is the time limit for filing memorandum of cross objections before Tribunal? 

Ans. 45 days from the date of receipt of appeal. 

Q 20. Bring out the differences in appeal (to Tribunal) provisions under CGST & SGST? 

Ans;(i) The provisions under Section 82 of SGST Act for appeal by any person aggrieved by the order or decision passed against him by First Appellate Authority are essentially similar to provisions contained in Section 82 of CGST Act and discussions made therein are equally applicable to section 82 of SGST as well. 160 161 

(ii) In addition to the above the provision of Section 82 of SGST Act also covers an appeal to be filed to Appellate Tribunal against the revisionary order passed by Commissioner. 

(iii) However the provisions relating to appeal by the revenue against the order of first appellate authority as CGST Act is not provided in SGST Act since the revisionary powers (against the orders passed by the FAA, who in the states is likely to be “subordinate” to the Commissioner) is provided to Commissioner to SGST. 

(iv) In addition, the person aggrieved under SGST Act has to pre-deposit full deposit of admitted tax, interest, fine, fee and penalty arising from the impugned order. 

Q 21. Whether interest becomes payable on refund of pre-deposit amount? 

Ans. Yes. As per Section 85 of MGL Where an amount deposited by the appellant under sub-section (6)/(4) of section 79 or under sub-section (10)/(7) of section 82 is required to be refunded consequent to any order of the First Appellate Authority or of the Appellate Tribunal, as the case may be, interest at the rate specified under section 39 shall be payable in respect of such refund from the date of payment of the amount till the date of refund of such amount. 

Q 22. An appeal from the order of Tribunal lies to which forum? 162 

Ans. High Court if the High Court is satisfied that such an appeal involves a substantial question of law. (Section 87(1)). However, if the order passed by the Tribunal relates to a matter where two or more States, or a State and Centre, have a difference of views regarding the treatment of a transaction(s) being intra-State or inter-State; or a matter where two or more States, or a State and Center, have a difference of views regarding place of supply, then appeal against such order shall lie to the Supreme Court and not High Court. 

Q 23. What is the time limit for filing an appeal before the High Court? 

Ans. 180 days from the date of receipt of the order appealed against. However, the High Court has the power to condone further delay on sufficient cause being shown.

IF SOMEONE FAILS TO SUBMIT GST RETURN

Q.If a taxable person fails to file the return required under law (under section 27 or 31), what legal recourse is available to the tax officer? 

Ans. The proper officer has to first issue a notice to the defaulting taxable person under section 32 of MGL requiring him to furnish the return within a specified period of time, which has to be a minimum of fifteen days as per section 46 of MGL. 

If the taxable person fails to file return within the given time, the proper officer shall proceed to assess the tax liability of the return defaulter to the best of his judgement taking into account all the relevant material available with him. 

This power is given under section 46 of MGL.

Audit of taxpayers in GST regime

Q.. Who can conduct Audit of taxpayers? 

Ans. As per section 49 of MGL, any officer of CGST or SGST authorized by his Commissioner by a general or specific order may conduct audit of a taxpayer. The frequency and manner of audit will be prescribed in due course. 

Q  Whether any prior intimation is required before conducting the audit? 

Ans. Yes, prior intimation is required and the taxable person should be informed at least 15 days prior to conduct of audit.

Recipient feed the invoices If missed by the supplier

Q.Can a recipient feed information in his GSTR-2 which has been missed by the supplier? 

Ans Yes, the recipient can himself feed the invoices not uploaded by his supplier. 

The credit on such invoices will also be given provisionally but will be subject to matching. On matching, if the invoice is not uploaded by the supplier, both of them will be intimated. 

If the mismatch is rectified, provisional credit will be confirmed. But if mismatch continues even after intimation, the credit provisionally allowed will be reversed.

Disputes & Solutions under the GST regime?

Q How are the disputes going to be resolved under the GST regime? 

Ans. The Constitution (one hundred and first amendment) Act, 2016 provides that the Goods and Services Tax Council shall establish a mechanism to adjudicate any dispute- 16 

(a) between the Government of India and one or more States; or 

(b) between the Government of India and any State or States on one side and one or more other Sates on the other side; or 

(c) between two or more States, arising out of the recommendations of the Council or implementation thereof.

GSTN its role in the GST regime

 Q What is GSTN and its role in the GST regime? 

Ans. GSTN stands for Goods and Service Tax Network (GSTN). A Special Purpose Vehicle called the GSTN has been set up to cater to the needs of GST. The GSTN shall provide a shared IT infrastructure and services to Central 14 15 and State Governments, tax payers and other stakeholders for implementation of GST. 

The functions of the GSTN would, inter alia, include:

 (i) facilitating registration;

 (ii) forwarding the returns to Central and State authorities; 

(iii) computation and settlement of IGST; 

(iv) matching of tax payment details with banking network;

 (v) providing various MIS reports to the Central and the State Governments based on the tax payer return information; 

(vi) providing analysis of tax payers’ profile; and (vii) running the matching engine for matching, reversal and reclaim of input tax credit. 

The GSTN is developing a common GST portal and applications for registration, payment, return and MIS/ reports. The GSTN would also be integrating the common GST portal with the existing tax administration IT systems and would be building interfaces for tax payers. Further, the GSTN is developing back-end modules like assessment, audit, refund, appeal etc. for 19 States and UTs (Model II States). The CBEC and Model I States (15 States) are themselves developing their GST back-end systems. 

Integration of GST front-end system with back-end systems will have to be completed and tested well in advance for making the transition smooth.

The role of GST Council

 Q.What would be the role of GST Council? 

Ans. A GST Council would be constituted comprising the Union Finance Minister (who will be the Chairman of the Council), the Minister of State (Revenue) and the State Finance/Taxation Ministers to make recommendations to the Union and the States on (i) the taxes, cesses and surcharges levied by the Centre, the States and the local bodies which may be subsumed under GST; 

(ii) the goods and services that may be subjected to or exempted from the GST; 10 11 

(iii) the date on which the GST shall be levied on petroleum crude, high speed diesel, motor sprit (commonly known as petrol), natural gas and aviation turbine fuel; 

(iv) model GST laws, principles of levy, apportionment of IGST and the principles that govern the place of supply;

 (v) the threshold limit of turnover below which the goods and services may be exempted from GST;

 (vi) the rates including floor rates with bands of GST; 

(vii)any special rate or rates for a specified period to raise additional resources during any natural calamity or disaster; 

(viii) special provision with respect to the NorthEast States, J&K, Himachal Pradesh and Uttarakhand; and 

(ix) any other matter relating to the GST, as the Council may decide.

GST simultaneously under Central GST (CGST) and State GST (SGST)?

Q. How a particular transaction of goods and services would be taxed simultaneously under Central GST (CGST) and State GST (SGST)? 

Ans. The Central GST and the State GST would be levied simultaneously on every transaction of supply of goods and services except the exempted goods and services, goods which are outside the purview of GST and the transactions which are below the prescribed threshold limits. Further, 8 9 both would be levied on the same price or value unlike State VAT which is levied on the value of the goods inclusive of CENVAT. 

While the location of the supplier and the recipient within the country is immaterial for the purpose of CGST, SGST would be chargeable only when the supplier and the recipient are both located within the State. Illustration I: Suppose hypothetically that the rate of CGST is 10% and that of SGST is 10%. When a wholesale dealer of steel in Uttar Pradesh supplies steel bars and rods to a construction company which is also located within the same State for, say Rs. 100, the dealer would charge CGST of Rs. 10 and SGST of Rs. 10 in addition to the basic price of the goods. He would be required to deposit the CGST component into a Central Government account while the SGST portion into the account of the concerned State Government. Of course, he need not actually pay Rs. 20 (Rs. 10 + Rs. 10 ) in cash as he would be entitled to set-off this liability against the CGST or SGST paid on his purchases (say, inputs). But for paying CGST he would be allowed to use only the credit of CGST paid on his purchases while for SGST he can utilize the credit of SGST alone. In other words, CGST credit cannot, in general, be used for payment of SGST. Nor can SGST credit be used for payment of CGST. Illustration II: Suppose, again hypothetically, that the rate of CGST is 10% and that of SGST is 10%. When an advertising company located in Mumbai supplies advertising services to a company manufacturing soap also located within the State of Maharashtra for, let us say Rs. 100, the ad company would charge CGST of 8 9 Rs. 10 as well as SGST of Rs. 10 to the basic value of the service. He would be required to deposit the CGST component into a Central Government account while the SGST portion into the account of the concerned State Government. Of course, he need not again actually pay Rs. 20 (Rs. 10+Rs. 10) in cash as it would be entitled to set-off this liability against the CGST or SGST paid on his purchase (say, of inputs such as stationery, office equipment, services of an artist etc). But for paying CGST he would be allowed to use only the credit of CGST paid on its purchase while for SGST he can utilise the credit of SGST alone. In other words, CGST credit cannot, in general, be used for payment of SGST. Nor can SGST credit be used for payment of CGST

Benefits from GST

Q..What are the benefits which the Country will accrue from GST? 

Ans. Introduction of GST would be a very significant step in the field of indirect tax reforms in India. By amalgamating a large number of Central and State taxes into a single tax and allowing set-off of prior-stage taxes, it would mitigate the ill effects of cascading and pave the way for a common national market. 

For the consumers, the biggest gain would be in terms of a reduction in the overall tax burden on goods, which is currently estimated at 25%-30%. Introduction of GST would also make our products competitive in the domestic and international markets. Studies show that this would instantly spur economic growth. There may also be revenue gain for the Centre and the States due to widening of the tax base, increase in trade volumes and improved 10 11 tax compliance. 

Last but not the least, this tax, because of its transparent character, would be easier to administer.