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Withdrawal of Appeal and its consequences

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Withdrawal of Appeal and its consequences
Kashish Gupta By: Kashish Gupta
January 4, 2023
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Withdrawal of Appeal and its consequences

GST Council in its 48th meeting recommended to provide a facility for withdrawal of appeal upto certain specified stage to help in reducing litigations at the level of appellate authorities. Accordingly, Rule 109C has been inserted by Not. No. 26/2022-CT dated 26.12.2022 which reads as under:

“Rule 109C. Withdrawal of Appeal. The appellant may, at any time before issuance of show cause notice under sub-section (11) of section 107 or before issuance of the order under the said sub-section, whichever is earlier, in respect of any appeal filed in FORM GST APL-01 or FORM GST APL-03, file an application for withdrawal of the said appeal by filing an application in FORM GST APL-01/03W:

Provided that where the final acknowledgment in FORM GST APL-02 has been issued, the withdrawal of the said appeal would be subject to the approval of the appellate authority and such application for withdrawal of the appeal shall be decided by the appellate authority within seven days of filing of such application:

Provided further that any fresh appeal filed by the appellant pursuant to such withdrawal shall be filed within the time limit specified in sub-section (1) or sub-section (2) of section 107, as the case may be.”

Analysis of Amendment

  1. Application to withdraw the appeal can be filed by an assessee in Form GST APL-01W and by the department in Form GST APL-03W.
  2. This facility has been provided in case of appeals filed before first appellate authorities.
  3. If the application for withdrawal of appeal is submitted prior to issuance of acknowledgment in Form GST APL-02, then the order/approval of the appellate authority is not required.
  4. On the contrary, if the withdrawal application is submitted after issuance of acknowledgment in Form GST APL-02, then the order/approval of the appellate authority which would be given within 7 days. If the opposite party does not object the withdrawal and appellate authority is judiciously satisfied, the appellant shall be allowed to withdraw the appeal.
  5. In either of cases, appellant can re-file the appeal before same authority provided the same is filed within the statutorily permissible timelines. This is a welcome provision given that it is well settled that appeals once withdrawn cannot be re-filed before same authority or no cause of action arise for seeking relief at next appellate forum unless the withdrawal was persuaded, or was under coercion or undue influence.
  6. In our view, if the application to withdraw the appeal is allowed i.e., appeal is withdrawn after issuance of acknowledgment in Form GST APL-02 and later on, need arises to contest the issue before appellate authorities, the only remedy would be to approach next appellate forum with a prayer to re-store the appeal on the files of first appellate authority to its original number. However, given the settled jurisprudence over the issue, it must be supported by strong factual reasons to justify the cause of action.
  7. Date of issue of final acknowledgment in Form GST APL-02 would play a pivotal role in cases of withdrawal of appeal.

(Views given are strictly personal. Author can be reached at kashish@pakshlegal.in, +91 85108 06440)

 

By: Kashish Gupta - January 4, 2023

 

 

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