FILING OF APPEAL BEFORE GOODS AND SERVICES TAX APPELLATE TRIBUNAL – PART IV

[DR.MARIAPPAN GOVINDARAJAN]

Electronic filing

An appeal or application to be filed before the Appellate Tribunal shall be uploaded electronically on the GSTAT portal.  All appeals and applications filed before the Appellate Tribunal shall be scrutinised and processed electronically through the GSTAT portal. All notices, communications and summons shall be issued electronically and signed in the manner provided on the said portal.  All replies filed and documents that are or may be required to be presented before the Appellate Tribunal, either on the directions of the said Tribunal or otherwise, shall be signed, verified and uploaded electronically on the GSTAT portal.

Proceedings before GSTAT portal

All proceedings before the Appellate Tribunal shall be conducted through the GSTAT portal and all such proceedings shall be recorded on the said portal.

Mode of hearing

All hearings before the Appellate Tribunal may be conducted, either in the physical mode or upon the permission of the President, in the electronic mode,

Authorised representative

Rule 2(1)(d) defines the expression ‘authorised representative’ in relation to any proceedings before the Appellate Tribunal as-

• a person duly appointed by the Central Government or by the concerned State Governments or by an officer duly authorised in this behalf as authorised representative to appear, plead and act for the Commissioner in such proceedings; or
• a person authorised in writing or through a vakalatnama, duly stamped, by a party to present his case before the Appellate Tribunal as provided under section 116 of the Act, to appear, plead or act on his behalf in such proceedings.

Section 116 of the Act provides that an authorised representative is entitled or required to appear before the Appellate Tribunal in connection with any proceedings under this Act, may, otherwise than when required under this Act to appear personally for examination on oath or affirmation, subject to the other provisions of this section, appear by an authorised representative.

The following may act as authorised representative in the appeal proceedings-

• his relative or regular employee; or
• an advocate who is entitled to practice in any court in India, and who has not been debarred from practicing before any court in India; or
• any chartered accountant, a cost accountant or a company secretary, who holds a certificate of practice and who has not been debarred from practice; or
• a retired officer of the Commercial Tax Department of any State Government or Union territory or of the Board who, during his service under the Government, had worked in a post not below the rank than that of a Group-B Gazetted officer for a period of not less than 2 years; such officer shall not be entitled to appear before any proceedings under this Act for a period of one year from the date of his retirement or resignation; or
• any person who has been authorised to act as a goods and services tax practitioner on behalf of the concerned registered person.

The following persons are not eligible to act as an authorised representative-

• who has been dismissed or removed from Government service; or
• who is convicted of an offence connected with any proceedings under this Act, the State Goods and Services Tax Act, the Integrated Goods and Services Tax Act or the Union Territory Goods and Services Tax Act, or under the existing law or under any of the Acts passed by a State Legislature dealing with the imposition of taxes on sale of goods or supply of goods or services or both; or
• who is found guilty of misconduct by the prescribed authority;
• who has been adjudged as an insolvent.

Any person who has been disqualified under the provisions of the State Goods and Services Tax Act or the Union Territory Goods and Services Tax Act shall be deemed to be disqualified under this Act.

Change of authorised representative

A authorised representative proposing to file a Vakalatnama or Memorandum of Appearance or letter of authorisation, in any pending case or proceeding before the Appellate Tribunal in which there is already an authorised representative on record, shall do so only with the written consent of the the authorised representative on record or when such consent is refused, with the permission of the Appellate Tribunal after revocation of Vakalatnama or Memorandum of Appearanceon an application filed in this behalf, which shall receive consideration only after service of such application on the counsel already on record.

Empanelment of authorised representatives

The Appellate Tribunal may draw up a panel of authorised representatives or valuers or such other experts as may be required by the Appellate Tribunal to assist in proceedings before the Appellate Tribunal.  The Appellate Tribunal may call upon any of the persons from panel for assistance in the proceedings before the Bench, if so required. The remuneration payable and other allowances and compensation admissible to such persons shall be specified in consultation with the Appellate Tribunal.

Dress Code for authorised representatives

While appearing before the Appellate Tribunal, the authorised representatives shall wear the same professional dress as prescribed in their Code of Conduct.

Misconduct of authorised representative

Where an authorised representative, other than those referred to in clause (b) or clause (c) of subsection (2) of section 116 is found, upon an enquiry into the matter, guilty of misconduct in connection with any proceedings under the Act, the Commissioner may, after providing him an opportunity of being heard, disqualify him from appearing as an authorised representative.

Regulation of court work

It is the duty of Assistant Registrar or Deputy Registrar, while the Appellate Tribunal is holding a sitting, to ensure that no inconvenience or wastage of time is caused to the Bench in making available the services of Court officer or stenographer or peon or attended. the Court officer shall ensure that perfect silence is maintained in and around the Court Hall and no disturbance whatsoever is caused to the functioning of the Bench and that proper care is taken to maintain dignity and decorum of the court.

Listing of urgent cases

Any urgent matter filed before 12:00 noon shall be listed before the Appellate Tribunal on the following working day, if it is complete in all respects as provided in these rules and in exceptional cases, it may be received after 12:00 noon but before 3:00 p.m. for listing on the following day, with the specific permission of the Appellate Tribunal or President.

Hearing

Hearing the parties in a case is paramount importance in the judicial system. It is the principles of Natural Justice that reasonable opportunity of bearing heard is to be given to a party. The Appellate Tribunal, after filing of the appeal, receiving the counter reply from the Department, shall hear the parties in the hearing date fixed by the Appellate Tribunal or on the date of adjournment.

The parties or authorised representative or legal practitioners shall, before the commencement of the proceedings for the day, furnish to the Court officer a list of law journals, reports, statutes and other citations, which may be needed for reference or photocopy of full text thereof.

Subject to the orders of the Bench, the Court officer shall call the cases listed in the cause list in the serial order. The proceedings shall be open to public. the Appellate Tribunal may, if deem fit, order at any stage of the proceedings of any particular case that the public generally or any particular person shall not have access to, or be or remain in the room or building used by the Appellate Tribunal.

Absence of appellant

If appellant does not appear when the appeal is called on for hearing, the Appellate Tribunal may, in its discretion, either dismiss the appeal for default or hear and decide it on merits. If an appeal has been dismissed for default and the appellant appears afterwards and satisfies the Appellate Tribunal that there was sufficient cause for his non-appearance when the appeal was called on for hearing, the Appellate Tribunal shall make an order setting aside the dismissal and restore the appeal.

ex-parte order

Where on the day fixed for the hearing of the appeal or on any other day to which the hearing is adjourned the appellant appears and the respondent does not appear when the appeal is called on for hearing, the Appellate Tribunal may hear and decide the appeal ex parte.

Production of additional evidence

The appellant shall not be allowed to produce before the Appellate Tribunal any evidence, whether oral or documentary, other than the evidence produced by him during the course of the proceedings before the adjudicating authority or, as the case may be, the Appellate Authority except in the following circumstances-

• where the adjudicating authority or the Appellate Authority has refused to admit evidence which ought to have been admitted; or
• where the appellant was prevented by sufficient cause from producing the evidence which he was called upon to produce by the adjudicating authority or, as the case may be, the Appellate Authority; or
• where the appellant was prevented by sufficient cause from producing before the adjudicating authority or, the Appellate Authority any evidence which is relevant to any ground of appeal; or
• where the adjudicating authority or the Appellate Authority has made the order appealed against without giving sufficient opportunity to the appellant to adduce evidence relevant to any ground of appeal.

The Appellate Tribunal, for admitting new evidence, shall record the reasons for its admission in writing.

The Appellate Tribunal shall not take any evidence produced unless the adjudicating authority or an officer authorised in this behalf by the said authority has been allowed a reasonable opportunity –

• to examine the evidence or document or to cross-examine any witness produced by the appellant; or
• to produce any evidence or any witness in rebuttal of the evidence produced by the appellant.

Where any direction has been made by the Appellate Tribunal to produce any documents or to examine any witnesses or to adduce any evidence before any authority, the authority shall comply with the directions of the Appellate Tribunal and after such compliance send the documents, the record of the deposition of the witnesses or the record of evidence adduced, to the Appellate Tribunal. The Appellate Tribunal may, of its own motion, call for any documents or summon any witnesses on points at issue, if it considers necessary to meet the ends of justice.

Evidence by affidavit

The Appellate Tribunal may direct the parties to give evidence, if any, by affidavit.

Cross examination

In general, cross examination of evidence given by a person. If the Appellate Tribunal considers it necessary in the interest of natural justice, it may order cross-examination of any deponent on the points of conflict either through information and communication technology facilities such as video conferencing or otherwise as may be decided by the Appellate Tribunal, on an application moved by any party.

Adjournment

The Appellate Tribunal may, if sufficient cause is shown, at any stage of hearing of an appeal, grant time to the parties or any of them and adjourn the hearing of the appeal for reasons to be recorded in writing. no such adjournment shall be granted more than 3 times to a party during hearing of the appeal.

Order of Appellate Tribunal

The Appellate Tribunal may, after giving the parties to the appeal an opportunity of being heard, pass such orders thereon as it thinks fit, confirming, modifying or annulling the decision or order appealed against or may refer the case back to the Appellate Authority, or the Revisional Authority or to the original adjudicating authority, with such directions as it may think fit, for a fresh adjudication or decision after taking additional evidence, if necessary.

 The Appellate Tribunal shall, as far as possible, hear and decide every appeal within a period of one year from the date on which it is filed.

Every order of the Appellate Tribunal shall be in writing in English and shall be signed and dated by the Members constituting the Bench concerned. The Appellate Authority shall, along with its order, issue a summary of the order in FORM GST APL-04 clearly indicating the final amount of demand confirmed. The jurisdictional officer shall issue a statement in FORM GST APL-04 clearly indicating the final amount of demand confirmed by the Appellate Tribunal. Last date of hearing of the matter shall be typed on the first page of the order. If the order is dictated on the Bench, the date of dictation will be the date of the final order. If the order is reserved, the date of final order will be the date on which the order is pronounced.

 In cases, where gist of the decision is pronounced without the detailed order, the last para of the detailed order shall specify the date on which the gist of the decision was pronounced and in such cases, the date of the final order shall be the date on which all the Members of the Bench sign the order and where the order is signed on different dates by the Members of the Bench, the last of the dates will be the date of the order.

All orders shall be neatly and fairly typewritten in double space on one side only on durable foolscap folio paper of metric A-4 size (30.5 cm long and 21.5 cm wide) with left side margin of 5 cm and right-side margin of 2.5 cm. Corrections, if any, in the order shall be carried out neatly and sufficient space may be left both at the bottom and at the top of each page of the order to make its appearance elegant. Members constituting the Bench shall affix their signatures in the order of their seniority from right to left.

All orders or directions of the Bench shall be stated in clear and precise terms in the last paragraph of the order. The Appellate Tribunal may, in its discretion, pass such order in respect of imposing costs on the defaulting party as it may deem fit.  Every order or judgment or notice shall bear the seal of the Appellate Tribunal.

The routine orders, such as call for of the records, put up with records, adjournment and any other order as may be directed by the Member of the Tribunal shall be signed by the Court officer of the Bench.

Pronouncement of order

The Appellate Tribunal, after hearing the applicant and respondent, shall make and pronounce an order either at once or, as soon as thereafter as may be practicable but not later than thirty days from the final hearing excluding vacations or holidays.

Any Member of the Bench may pronounce the order for and on behalf of the Bench. If the Members of the Bench who heard the case are not readily available or have ceased to be Members of the Appellate Tribunal, the President may authorise any other Member to pronounce the order on his behalf after being satisfied that the order has been duly prepared and signed by all the Members who heard the case.

The order pronounced by the Member so authorised shall be deemed to be duly pronounced. The Member so authorised for pronouncement of the order shall affix his signature in the order sheet of the case stating that he has pronounced the order as provided in this rule. If the order cannot be signed by reason of death, retirement or resignation or for any other reason by anyone of the Members of the Bench who heard the case, it shall be deemed to have been released from part heard and listed afresh for hearing.

Forwarding of order copy

The Appellate Tribunal shall send a copy of every order passed by it to-

• the Appellate Authority; or
•  the Revisional Authority; or
•  the original adjudicating authority;
• the appellant; and
• the jurisdictional Commissioner or the Commissioner of State tax or the Union territory tax.

the orders of the Appellate Tribunal as are deemed fit for publication in any authoritative report or the press, may be released for such publication on such terms and conditions as the Appellate Tribunal may lay down.

Reference to Larger Bench

In case of different opinion of Members of Bench while hearing an appeal, the appeal shall be referred to larger Bench by the President, as it deems fit, for disposal of the appeal.

Binding nature of the order

Orders passed by the Appellate Tribunal on an appeal shall be final and binding on the parties unless appeal has been filed against the said order before the High Court/Supreme Court.

Appeal to High Court

Any person aggrieved by any order passed by the State Benches of the Appellate Tribunal may file an appeal to the High Court within a period of 180 days on which the order appealed against is received by the aggrieved person. The High Court may admit such appeal, if it is satisfied that the case involves a substantial question of law.

Interest on refund

If the appeal is decided in favour of the appellant the amount of pre-deposit made by the appellant for filing the appeal before the Appellate Tribunal shall be refunded along with interest, as prescribed under Section 54 (5) of the Act, from the date of payment of the amount till the date of refund of such amount.

Official seal

The official seal and emblem of the Appellate Tribunal shall be such, as the President may from time to time specify and shall be in the custody of the Registrar.

Powers of Appellate Tribunal

• The Appellate Tribunal may on sufficient cause being shown, exempt the parties from compliance with any requirement of these rules and may give such directions in matters of practice and procedure, as it may consider just and expedient on the application moved in this behalf to render substantial justice.
• The Appellate Tribunal may extend the time appointed by these rules or fixed by any order, for doing any act or taking any proceeding, upon such terms, if any, as the justice of the case may require, and any extension may be ordered, although the application for the same is not made until the expiration of the time appointed or allowed.
•  Nothing in these rules shall be deemed to limit or otherwise affect the inherent powers of the Appellate Tribunal to make such orders or give such directions as may be necessary for meeting the ends of justice or to prevent abuse of the process of the Appellate Tribunal.
• The Appellate Tribunal may, within a period of 30 days from the date of completion of pleadings, and on such terms as to costs or otherwise, as it may think fit, amend any defect or error in any proceeding before it; and all necessary amendments shall be made for the purpose of determining the real question or issue raised by or depending on such proceeding.

Powers of President

The President may assign or delegate to the Vice-president of State Bench some of the functions required by these rules to be exercised by the President. The President may assign or delegate to a Joint Registrar or Deputy Registrar or Assistant Registrar or to any other suitable officer all or some of the functions required by these rules to be exercised by the Registrar.

The President shall exercise such financial and administrative powers over the Appellate Tribunal as may be prescribed.

Continuance of proceedings after death

Where in any proceedings the appellant or a respondent dies or is adjudicated as an insolvent or in the case of a company, is being wound up, the appeal or application shall abate, unless an application is made for continuance of such proceedings by or against the successor-in-interest, the executor, receiver, liquidator or other legal representative of the appellant or respondent. Every such application shall be made within a period of 60 days of the occurrence of the event.  The Appellate Tribunal may, if it is satisfied that the applicant was prevented by sufficient cause from presenting the application within the period so specified, allow it to be presented within such further period as it may deem fit.

Rectification of error

Any clerical mistakes in any order of the Appellate Tribunal or error therein arising from any accidental slip or omission may, at any time, be corrected by the Appellate Tribunal on its own motion or on application of any party by way of rectification.  An application shall be made online which shall include all the information as prescribed in GSTAT FORM-01 within 1 month from the date of the final order for rectification.

Withdrawal of appeal

The appellant may, at any time before the issuance of the order in respect of any appeal filed in FORM GST APL-05, file an application for withdrawal of the said appeal by filing an application in FORM GST APL-05/W. If 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 Tribunal. Such application for withdrawal of the appeal shall be decided by the Appellate Tribunal within 15 days of filing of such application.

If any fresh appeal or application is decided to be filed by the appellant pursuant to such withdrawal, the same shall be filed within the time limit of 3 months by the appellant or 6 months by the Department as specified in sub-section (1) or sub-section (3) of section 112.