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GST APPELLATE TRIBUNAL - PRINCIPAL BENCH AND STATE BENCHES
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GST APPELLATE TRIBUNAL - PRINCIPAL BENCH AND STATE BENCHES
In respect of dispute on tax matters, whether direct taxes or indirect taxes, the assessee is to challenge the order of Assessing Officer/Adjudicating Authority before the Appellate Authority prescribed for this purpose. If the assessee is not satisfied with the order of Appellate Authority then he can move to the Appellate Tribunal constituted for this purpose. GST laws have appellate authority for hearing appeal against the order of Assessing Officer and also Appellate Tribunals. But the provisions of Appellate Tribunals have not come into force despite more than five years and 10 months from the implementation of GST. Therefore the registered persons are suffering very much since there is no Appellate Tribunal. They are compelled to file writ petition before the High Court and to get remedy. Now the Central Government amended the provisions relating to the Appellate Tribunal in the Finance Act, 2023. These provisions have also been notified in the official gazette till date.
Finance Act, 2023 made amendments to Central Goods and Services Tax Act, 2017 (‘Act’ for short) including the substitution of sections in relation to constitution of Appellate Tribunal. The following sections met amendments in Finance Act, 2023-
Constitution of Benches
The newly substituted section 109 of the Act provides the constitution of the Appellate Tribunal and its Benches. Section 109(1) of the Act provides that the Government shall, on the recommendations of the Council, by notification, establish with effect from such date as may be specified therein, an Appellate Tribunal known as the Goods and Services Tax Appellate Tribunal for hearing appeals against the orders passed by the Appellate Authority or the Revisional Authority.
There shall be a Principal Bench (before amendment it is ‘National Bench’) of the Appellate Tribunal at New Delhi. The Principal Bench may consist of the President, Judicial Member, a Technical Member (Centre) and a Technical Member (State). Before amendment constitution provisions were made for the constitution of Regional Benches coming under the control of National Bench.
On the request of the State, the Government may, by notification, constitute such number of State Benches at such places and with such jurisdiction as may be recommended by the Council, which shall consist of two Judicial Members, a Technical Member (Centre) and a Technical Member (State). The senior-most Judicial Member within the State Benches, as may be notified, shall act as the Vice-President for such State Benches and shall exercise such powers of the President as may be prescribed, but for all other purposes be considered as a Member.
Before amendment the Central Government shall specify for each State or Union Territory a Bench of the Appellate Tribunal called as ‘State Bench’ for exercising the powers of the Appellate Tribunal within the concerned State or Union territory. The State Bench is to be called as ‘Area Bench’ and other Benches are called as ‘State Benches’.
The Principal Bench and the State Bench shall hear appeals against the orders passed by the Appellate Authority or the Revisional Authority. The cases, in which any one of the issues involved relates to the place of supply, shall be heard only by the Principal Bench.
Appeals, where the tax or input tax credit involved or the amount of fine, fee or penalty determined in any order appealed against, does not exceed Rs.50 lakhs and which does not involve any question of law may, with the approval of the President, and subject to such conditions as may be prescribed on the recommendations of the Council, be heard by a single Member, and in all other cases, shall be heard together by one Judicial Member and one Technical Member.
If, after hearing the case, the Members differ in their opinion on any point or points, such Member shall state the point or points on which they differ, and the President shall refer such case for hearing,-
and such point or points shall be decided according to the majority opinion including the opinion of the Members who first heard the case.
Powers of Principal Bench
The President shall, from time to time, by a general or special order, distribute the business of the Appellate Tribunal among the Benches and may transfer cases from one Bench to another.
Powers of Government
The Government may, in consultation with the President, for the administrative efficiency, transfer Members from one Bench to another Bench. A Technical Member (State) of a State Bench may be transferred to a State Bench only of the same State in which he was originally appointed, in consultation with the State Government.
Qualifications of Members
Section 110 provides the qualification, appointment and condition of services of the President and Members of the Appellate Tribunal.
The State Government may, on the recommendations of the Council, by notification, relax the requirement of completion of 25 years of service in Group A, or equivalent, in respect of officers of such State where no person has completed 25 years of service in Group A, or equivalent, but has completed 25 years of service in the Government, subject to such conditions, and till such period, as may be specified in the notification.
Appointment of Members
The President, Judicial Member, Technical Member (Centre) and Technical Member (State) shall be appointed or re-appointed by the Government on the recommendations of a Search-cum-Selection Committee. The Committee shall recommend a panel of two names for appointment or re-appointment to the post of the President or a Member, as the case may be.
The Search-cum-Selection Committee for Technical Member (State) of a State Bench shall consist of the following members-
While making selection for Technical Member (State) of a State Bench, first preference shall be given to officers who have worked in the State Government of the State to which the jurisdiction of the Bench extends.
The Search-cum-Selection Committee for all other cases shall consist of the following members-
The Chairperson shall have the casting vote and the Member Secretary shall not have a vote. No appointment or re-appointment of the Members of the Appellate Tribunal shall be invalid merely by reason of any vacancy or defect in the constitution of the Search-cum-Selection Committee.
Tenure of Members
The President of the Appellate Tribunal shall hold office for a term of 4 years from the date on which he enters upon his office, or until he attains the age of 67 years, whichever is earlier and shall be eligible for re-appointment for a period not exceeding 2 years.
The Judicial Member, Technical Member (Centre) or Technical Member (State) of the Appellate Tribunal shall hold office for a term of 4 years from the date on which he enters upon his office, or until he attains the age of 65 years, whichever is earlier and shall be eligible for re-appointment for a period not exceeding 2 years.
The salary of the President and the Members of the Appellate Tribunal shall be such as may be prescribed and their allowances and other terms and conditions of service shall be the same as applicable to Central Government officers carrying the same pay. The salary and allowances nor other terms and conditions of service of the President of Members of the Appellate Tribunal shall be varied to their disadvantage after their appointment. if the President or Member takes a house on rent, he may be reimbursed a house rent higher than the house rent allowance as are admissible to a Central Government officer holding the post carrying the same pay, subject to such limitations and conditions as may be prescribed.
The President or any Member may, by notice in writing under his hand addressed to the Government, resign from his office. The President or Member shall continue to hold office until the expiry of 3 months from the date of receipt of such notice by the Government or until a person duly appointed as his successor enters upon his office or until the expiry of his term of office, whichever is the earliest.
Removal of Member
The Government may, on the recommendations of the Search-cum-Selection Committee, remove from the office President or a Member, who-
The President or the Member shall not be removed on any of the grounds specified in clauses (d) and (e), unless he has been informed of the charges against him and has been given an opportunity of being heard.
Suspension of Member
The Government, on the recommendations of the Search-cum-Selection Committee, may suspend from office, the President or a Judicial or Technical Member in respect of whom proceedings for removal have been initiated.
Restrictions on Members
Subject to the provisions of Article 220 of the Constitution, the President or other Members, on ceasing to hold their office, shall not be eligible to appear, act or plead before the Principal Bench or the State Bench in which he was the President or, as the case may be, a Member.
Financial and Administrative Powers of President
Section 114 of the Act provides that the President shall exercise such financial and administrative powers over the Appellate Tribunal as may be prescribed.
Appeal to High Court
Section 117(1) of the Act provides that any person aggrieved by any order passed by the State Benches (before amendment ‘Area Bench’ or State Bench) of the Appellate Tribunal may file an appeal to the High Court and the High Court may admit such appeal, if it is satisfied that the case involves a substantial question of law. Section 117(5) of the Act provides that the High Court may determine any issue which–
Appeal to Supreme Court
Section 118(1) of the Act provides that an appeal shall lie to the Supreme Court from any order passed by the Principal Bench of the Appellate Tribunal.
By: Mr. M. GOVINDARAJAN - May 5, 2023
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