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GST > Appeals & Revision > Flashcards

Appeals & Revision Flashcards

1
Q

2 obligations placed by tax laws are______

A

tax related and procedure related

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2
Q

India has adopted dual GST. does this mean that if a tax payer is aggrieved , he will have to approach both the authorities ie, CGST and SGST for exercising his right of appeal ?

A

NO. Act makes provisions for cross empowerment. If proper officer of one Act (say CGST) passes an order, he will also act as Proper Officer of SGST for same transaction and issue order wrt to both components.

where Proper officer under one act has passed an order- Any appeal/review/revision lies with proper officer under the same Act

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3
Q

Appeals and revision is covered under Chap ____ of CGST act from Section ______ supplemented with Chap _____ of CGST Rules

A

a) Chapter XVIII
b) Sec 107-121
c) Chapter XIII : Rules 108 to 116

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4
Q

Meaning of Adjudicating Authority

A

Sec 2(4) : AA

Any authority appointed or authorised to pass any order or decision under the Act
but does not include CBEC, RA, AAR, AAAR , Appellate Authority and Appellate Tribunal

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5
Q

Meaning of Revisional Authority

A

Sec. 2(99) : RA

Means an authority appointed or authorised for revision of decisions or orders as referred to in Sec.108

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6
Q

Sec.107

A

Appeals to Appellate Authority

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7
Q

Sec.108

A

Powers of Revisional Authority

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8
Q

Sec.109

A

Constitution and structure of Appellate Tribunals

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9
Q

Sec.111

A

Procedure before Appellate Tribunal

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10
Q

Sec.112

A

Appeal to Appellate Tribunal

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11
Q

Sec.113

A

Orders of Appellate Tribunal

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12
Q

Rule 112 of CGST rules

A

Production of additional evidence before the Appellate Authority or Appellate tribunal

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13
Q

Sec.116

A

Appearance by Authorised Representative

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14
Q

Sec.117

A

Appeal to the HC

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15
Q

Sec.118

A

Appeal to the SC

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16
Q

Sec.119

A

Appeal to the SC and Sums due to be paid notwithstanding appeal

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17
Q

Sec. 120

A

Appeal not to be filed in certain cases

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18
Q

Sec.121

A

Non appealable decisions and orders

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19
Q

what are the non appealable decisions and orders?

A

Sec.121
NO appeals can be filed against following orders:

> order of commissioner or authority empowered to direct transfer of proceedings from one officer to another
order pertaining seizure/retention of books of account, register or other docs
order sanctioning prosecution under the Act
order passed u/s 80 ( payment of tax in instalments)

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20
Q

Appeal not to be files in certain cases . explain?

A

Sec.120
- Board fixes monetary limits for regulating filing of appeal / application by GST officers

  • Non filing of appeal/application by CGST officer on account of monetary limits shall not preclude such officer from filing an appeal if there is a similar case or issue
  • No party to application/appeal can contend that CGST officer has acquiesced in the decision on disputed issue by not filing appeal ( due to monetary limits)
  • Appellate Tribunal or Court hearing such appeal/application shall have regard to circumstances for non filing by officer on account of monetary limits
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21
Q

Sums due to be paid not withstanding the appeal

A

Sec.119

If any sum is due to CG as a result of an order passed by appellate Tribunal/ HC- notwithstanding that appeal has been preferred to HC/SC, The sum due shall be paid in accordance with the order passed.

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22
Q

Explain the appeal before the Appellate authority by the assessee wrt to following :

a) Orders appealable
b) Time limit for filing appeal
c) Form for appeal
d) Mandatory pre deposit for filing appeal

A

Sec. 107

a) Orders appealable to Appellate Authority(AA)
- appeal against decision/order passed by Adjudicating Authority
- only aggrieved person can file an appeal

b) Time limit for filing
- within 3 months from date of communication of such decision/order
- AA can condone delay in filing appeal by 1 month if satisfied of sufficient cause - S.107(4)

c) Form for Appeal to AA
- GST APL- 01 either electronically or otherwise
- provisional acknowledgement will be issued immediately

d) Mandatory pre deposit for filing appeal
NO appeal can be filed unless specified amount of pre-deposit made : Deposit of tax, interstate’s, fine, fee and penalty arising from the impugned order by the appellant along with 10% of the Tax in dispute

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23
Q

Orders appealable to Appellate Authority(AA)

are appeal against decision/order passed by __________

A

Adjudicating Authority

24
Q

Time limit for filing an appeal by assessee is within _______

A

3 months from date of communication of such decision/order

25
Q

Appellate Authority can condone delay in filing appeal by ________

A

1 month

26
Q

Form for Appeal to Appellate Authority by assessee

A

GST APL 01

27
Q

Explain the appeal before the Appellate authority by the Department wrt to following :

a) Orders appealable
b) Time limit for filing appeal
c) Form for appeal
d) Pre deposit

( Concept of Departmental Appeal )

A

Sec. 107

Where dept is not in agreement with decision/ order passed by Adjudicating authority , it can file a Review Application/ Appeal with the AA.

a) Commissioner on his own or on request from STGST/UTGST comm. , examine record of any proceedings in which adjudicating authority has passed any decision/ order to satisfy himself on legality/ propriety of said order.

b) Comm. may order any subordinate officer to file appeal within 6 months from date of communication of said decision/order
AA can condone delay by 1 month

c) Form- GST APL 03
d) NO requirement of making pre deposit for departmental appeal

Note: this application made shall be dealt with by AA as if it were an appeal made against decision of Adjudicating authority - s.107(3)

28
Q

Time limit for filing an appeal by department is within _______

A

6 months from date of communication of said decision/order

29
Q

Form for Appeal to Appellate Authority by Departmenr

A

GST APL 03

30
Q

Explain the Appeal process followed by the AA( Orders of AA)

A

Sec.107

> Make further inquiry and pass its Order- In - Appeal which may confirm/modify/annul the decision/order appealed against - but shall not refer it back to Adj. Authority

> Can also increase the rigour of the order appealed by
-enhancing any fee/penalty/fine in lieu of confiscation of goods of greater value
reducing the amount of refund/ ITC etc
after giving opportunity of show cause to appellant

> If AA of opinion that tax not paid/ short paid/ erroneously refunded/ ITC wrongly availed/utilized–> Order requiring appellant to pay such tax shall be passed after giving notice to show cause against proposed order; order passed within time limits u/s 73 or 74.

> Order in appeal shall be speaking order

> Law provides advisory time limit of 1 yr. from date of filing appeal for AA to decide the appeal . This excludes period of stay ordered by any court/ tribunal

> Disposal of appeal - communicate order to appellant, respondent and Adj Authority

> Copy of order passed sent to Jurisdictional Comm or authority designated by him

> Every order passed by Appellate Tribunal shall be final and binding on parties unless taken to a higher appellate forum

31
Q

Explain the Duties of AA in appeal process.

A

sec. 107
follow principles of natural justice- hearing appellant, allowing reasonable adjournments ( not more than 3)
permitting additional grounds ( if reasonable)

32
Q

Appointment of Appellate Authority

A

Sec.107

Appeal within 6 months of said decision/order as follows:

a) If dec/order passed by Addtl or Joint Comm
AA is Comm( Appeals)

b) If dec/order is passed by Deputy/Asst. Comm or Supdt. , AA is any officer not below the rank of JC(Appeals)

33
Q

If decision/order is passed by Additional or Joint Commissioner, then the Appellate Authority is _____

A

Commissioner (Appeals)

34
Q

If decision/order is passed by Deputy/Assistant Comm or Superintendent , Appellate Authority is _________

A

any officer not below the rank of JC(Appeals)

35
Q

What is meant by a Speaking order?

A

It shall state the points for determination , the decision thereon and the reasons for decision

36
Q

Powers of Revisional Authority

A

Sec. 108

  • Orders which can be revised- 108(1)
  • Fetters to the powers of revision - 108(2)
  • Period to be excluded in computing limitation period of 3 yrs- 108(4), 108(5)
  • Revisional Authority ( Notifn NO. 5/2020)
37
Q

Orders which can be revised or

Revision of orders prejudicial to the interest of Revenue

A

Sec 108

> RA - suo motto or on request from SGST/UTGST comm.
Decision / order passed by any officer subordinate to him is :
- erroneous or prejudicial to interests of revenue
- illegal or improper
- not taken into a/c material facts whether available at time of issuance of order or not or in consequence of an observation by C&AG of India

may stay the operation of such decision/order for such period.
> Give opportunity of being heard & after making further inquiries necessary to pass order (Enhance/Modify/Annul)
> Every revision shall be final and binding subject to further appeal to Tribunal/HC/SC

38
Q

Revisional Authority

A

Notification NO. 5/2020 - Sec.108

Principal Comm /Comm for decisions/ orders passed by Additional or Joint Comm

Additional or Joint Comm for decisions/ orders passed by Deputy/Assistant Comm or Superintendent

39
Q

Fetters to powers of revision

RA shall not exercise the power of revision if?

A

Sec. 108 : Power of revision is subject to Sec.121.

RA shall not exercise the power of revision if :

   a) order has been subject to an appeal before AA/Tribunal/HC/SC
   b) 6 m not expired or > 3 yr expires after passing of order sought to be revised. 
   c) order already taken for revision at earlier stage
   d) order sought to be revised is revision order in first place
40
Q

Is RA allowed to pass order on any point not raised and decided in an appeal before AA/ Tribunal/HC/SC?

A

Yes. Sec. 108 - Before the expiry of period of 1 yr from date of order ( for appeal ) or before expiry of period of 3 yrs from date of initial order, whichever is later.

41
Q

Period to be excluded in computing limitation period of 3 yrs for RA

A

Sec. 108(4)
a) > involves an issue on which Appellate Tribunal/HC has given decision in some other proceedings and appeal to HC/SC against such decision is pending :

> the period spent between shall be excluded-
date of decision of AT and date of dec of HC or
date of dec of HC and date of dec of SC

> where proceedings initiated by way of issue of notice u/s 108

b) Issuance of Revision order is stayed by order of Court / Tribunal, Exclude period of stay

42
Q

Tribunal is the ______ level of appeal where appeals can be filed against __________ by ________

A

a) second
b) Order in Appeal passed by AA or Order in Revision by RA
c) any person aggrieved

43
Q

Appellate Tribunal under GST Laws

A

Sec. 109-111

          - Constitution 
          - Structure of AT
          - Procedure before AT
44
Q

Constitution of Appellate Tribunal

A

Two tier tribunal ie , National Bench/ regional Benches and State Bench/ Area Benches .

If POS is one issue- National/Regional Bench will have jurisdiction to hear appeal
If issues other than POS- State/Area bench

Appeal from decision of National bench- directly to SC
Appeal from decision of State Bench- directly to jurisdictional HC

45
Q

Structure of Appellate Tribunal

A

Sec.109
President - AT ( Centre)
> National Bench - TM (C) - TM (S)
> Regional Bench -JM - TM (C) - TM (S)

President - AT ( State)
> State Bench -JM - TM (C) - TM (S)
> Area Bench -JM - TM (C) - TM (S)

On ceasing to hold office- appointees not entitled to appear, act or plead before AT

In absence of member due to Vacancy or otherwise
– any appeal may with approval of President or State President be heard by bench of 2 members

  • –Any appeal can be heard by a bench of 1 member with approval of President where
    a) tax involved or ITC or difference tax/ITC involved or amount of fine, fee or penalty determined in any order appealed against does not exceed 5,00,000/- and
    b) does not involve question of law
46
Q

Procedure before Appellate Tribunal

A

Sec. 111

1) not bound by code of civil procedure. - principles of natural justice apply.
2) same powers vested in civil court under CPC,1908 while trying suits
3) Orders may be enforced in the same manner as if it were a decree by a court in suit pending therein.
4) all proceedings deemed Judicial proceedings u/s 193 and 228 & fir sec.196 of IPC. Deemed civil court for S.195 and Chp XXVI of CCr.P,1973

47
Q

The matters in respect of which Appellate Tribunal have powers as civil court while trying a suit?

A

Sec.111

a) Summoning, enforcing attendance of a person and examine him on oath
b) Requiring the discovery and production of documents
c) Receiving evidence on affidavit
d) Requisitioning any public record or doc or copy of such record 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
h) any other prescribed matter

48
Q

The appellate Tribunal can send for execution of its orders to the court within the local limits of whose jurisdiction:

A

Sec. 111
In case of an order against a co.- Regd office of the co. is situated.
In case of order against any other person- The person concerned voluntarily resides or carries on business or personally works for gain.

49
Q

Appeal to Appellate Tribunal by Assessee

a) who can appeal ?
b) time limit ?
c) Form for filing ?
d) refuse to admit an appeal ?
e) Memorandum of cross objections?
f) Fees for filing appeal ?
g) Mandatory pre deposit for filing of appeal ?

A

Sec.112
a) person aggrieved by order passed against him by AA or RA
b) within 3 m from date of communication of order sought to appeal.
Tribunal can condone delay of additional 3 m - if sufficient cause
c) GST APL - 05

d) Power of Tribunal to refuse to admit and appeal if :
tax/ITC involved or difference in tax/ITC involved or
amount of fine, penalty, fee determined by such order
does not exceed Rs.50,000/-

e) Respondent can file cross objections within 45 days in GST APL 06 against any part of order appealed against and such memorandum shall be disposed off by AT as if it was initial appeal . Tribunal can condone delay of 45 days.

f) Rs.1000 for every Rs.1,00,000/- of tax/ITC/Diff.? fee, fine,penatly amt.
Fee shall not exceed Rs.25000/-
No fee for application for rectification of errors

g) Admitted full liability + 20% of tax in dispute

50
Q

Fees for filing appeal by Assessee is __________ subject to maximum of ___________

A

a) Rs.1000 for every Rs.1,00,000/- of tax/ITC/Diff.? fee, fine,penatly amt.
b) Rs.25000

51
Q

Departmental appeal to Appellate Tribunal

a) who can appeal ?
b) time limit ?
c) Form for filing ?
d) Fees for filing appeal ?

A

Sec. 112

a) Comm/SGST/UTGST Comm. on examination of record of any order by AA/RA
b) Order any subordinate to apply within 6m from date of order
c) GST APL 07
d) no fees. No requirement of pre deposit.

52
Q

Orders of the Appellate Tribunal

A

Sec 113

1) Tribunal after hearing both side:
- pass order confirm/modify/annul decision /order appealed against or
- refer case back to AA/RA / original adjudicating authority for fresh adjudication after taking additional evidence

2) adjournments- Max 3 to hearing of appeal to either side
3) Advisory time limit- 1 year from date of filing of appeal to Tribunal

4) Send copy of his order to :
- —–AA/RA/original Adj. Authority
- —–Appellant
- —–J Comm. / SGST/UTGST Comm.

5) Every order passed binding and final unless dispute taken to higher appellate forum

53
Q

Rectification of errors in order of Tribunal

A

Sec.113(3)

  • It can correct its own order but no power of Review
  • May amend order so as to rectify an error apparent on face of it if brought to notice within 3m from date of such order
  • No amendment with effect of enhancing /reducing refund/ITC / increasing liability without opportunity of being heard to party.
54
Q

Interest on refund of pre-deposit

A

Sec.115
Interest payable from
- date of payment of amount ( not date of order of AA/Tribunal)
till
- date of refund of such amount

55
Q

Production of Additional Evidence before the Appellate Authority or Appellate Tribunal

A

Rule 112 : Appellant not be allowed to produce any evidence before AA or Tribunal , oral or doc , other than those produced by him to Adj. A or AA

Exceptions:

a) where Adj. A or AA refused to admit the evidence which ought to have been admitted
b) appellant was prevented by sufficient cause from producing evidence which he was called upon to produce
c) appellant was prevented by sufficient cause from producing evidence relevant to grounds of appeal
d) Where Adj. A/ AA made the order appealed against without sufficient opportunity to appellant to adduce evidence

No additional evidence allowed unless AA or Appellate tribunal records reasons for admission in writing

AA or appellate Tribunal Shall not take any additional Evidence unless Adj A/ officer authorise allowed reasonable opportunity to -

a) Examine the evidence or do or cross examine any witness
b) to produce any evidence or any witness in rebuttal of additional evidence produced

GST (2 decks)

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