Part-A (Assessment,Audit & Scrutiny)

Ch XII (S.59-64)/Ch XI (Rule 98-102) deals with assessment;Ch XIII (S.65-66) deals with audit; the CGST provisions also applicable to IGST.

Assessment

S.2(11) defines it as a determination of tax liability and includes all kinds of assessments.

Self-Assessment

S.59, every regstd. shall self-assess taxes payable and furnish a return under S.39.with this trust is placed in the assessee for tax liability and returns.

Provisional Assessment(S.60)

subject to (2),if a person is unable to determine supply value/tax rate, he may request a proper Officer (PO) in written giving reasons for provisional tax payment and PO shall order within 90 days from request receipt,allowing provisional tax payment @ rate/value specified by him.
provisional payment allowed,if a taxable person executes a prescribed bond and with such security/surety as PO deems fit,binding payment of difference between finally assessed and provisional payment.
PO shall within 6 months or further 6 months on sufficient cause and written reasons (extended by joint/additional commissioners[J/AC], upto 4 years by commissioner) from order,pass final assessment order with required info.
interest @ rate under S.50(1) under provisional assessment but not paid on due date under S.39(7) from due date till actual payment.
refund consequent to final assessment,subject to S.54(8),interest per S.56.

Rule 98

request for provisional tax payment shall furnish app electronically GST ASMT-01
PO on app receipt,issue notice in ASMT-02 requiring additional info/docs and applicant to file reply in ASMT-03 and may appear personally if he desires.
PO orders in ASMT-04 allowing provisional tax payment along with bond+security (<25% of bond) to be executed.

bond in ASMT-05 and security as bank guarantee
bond under SGST/IGST deemed furnished here

PO issues notice in ASMT-06 calling for info/records for assessment finalization and a final assessment order specifying amount payable/refundable in ASMT-07.
applicant files app in ASMT-08 for security release after order issued above
PO releases security after ensuring payment per order and issues an order in ASMT-09 within working days from app receipt.

Scrutiny Assessment

GST officers are empowered to scrutinize return to verify correctness by asking for explanations for discrepancies.

S.61 provides:

PO may scrutinize return and inform of discrepancies and seek explanations as prescribed.
if the explanation acceptable,person informed and no further action taken
if no satisfactory explanation furnished within 30 days of info by PO or further permitted period or failure to take corrective measure,PO initiates appropriate action under S.65,66,67 or determine taxes/dues under S.73,74.

Rule 99

return furnished is selected for scrutiny,notice issued in GST ASMT-10 quantifying discrepancy and seeking explanations within 30 days from notice service or such further permitted periods.
if discrepancy accepted and dues paid, informed or explanations furnished in ASMT-11 to PO.
explanation furnished/info submitted found acceptable,PO informs in ASMT-12

Summary Assessment(S.64)

PO on evidence showing tax liability,with previous permission of J/AC assessing such liability to protect revenue interest and issue assessment orders (GST ASMT-16) on sufficient grounds.
if a taxable person is unascertainable,the person in charge of goods=deemed taxable and liable to pay tax/dues.

order summary uploaded electronically in GST DRC-07 [Rule 100(3)]

withdrawal app (GST ASMT-17) within 30 days from order receipt,if A/JC considers order to be erroneous, may withdraw order (GST ASMT-18) and follow procedure in S.73/74. [Rule 100(4,5)]

Best judgement Assessment

S.62 Assessment of Non-Filers

notwithstanding anything contrary in S.73/74,where regstd. person fails to furnish returns even after serving notice under S.46,PO may assess tax liability to best of his judgement a/c to available material by gathering and issuing assessment order within 5 years from date in S.44 for furnishing annual return.

Rule 100:assessment order (GST ASMT-13) and summary (GST DRC-07) uploaded electronically.

A person furnishes a valid return within 30 days of assessment order service,said order deemed withdrawn but interest under S.50(1) shall continue.

Rule 100(2):notice under S.63 in GST ASMT-14 containing grounds of best judgement and summary in GST DRC-01
after 15 days allowed for a reply, passed the order in GST ASMT-15 and summary in DRC-07.

Standard Operating Procedure to be followed in case of non-filers of returns

S.63 assessment of unregistered persons

notwithstanding S.73/74,person fails to obtain registration or whose registration is cancelled under S.29(2) but liable to pay tax, PO assesses liability to best of his judgement and issue assessment order within 5 years from date under S.44.
no order made without giving opportunity of being heard

Rule 100(2):notice in ASMT-14 and order in ASMT-15

CASE LAW:Audco India Limited vs. Commercial Tax Officer (2020) – Madras High Court

Audit

record examination and verifying info declared,taxes paid and assessing compliance.

S.2(13):examination of records,returns and other docs to verify turnover,taxes,refunds,ITC availed.

Audit by a regstd. dealer [S.35(5)]

whose turnover exceeds the prescribed limit during an FY that gets audited by CA/CMA shall submit a copy of audited annual accounts,reconciliation statement under S.44(2) and other prescribed docs.

nothing applicable to CG,SG depts, local authority whose books are subject to audit by C&AG of India/appointed auditor.

Budget 2021 removes the requirement of getting a GST audit as well as the reconciliation statement done/ certified by the specified professional, i.e., CA and CMA and provides for self-certification.

Audit by tax authorities(S.65)

commissioner/officer authorised by him by order,may undertake audit for prescribed/frequency.
conduct audit at a person's business place/office
person informed by notice of not less than 15 working days prior to audit
completed within 3 months of audit commencement

commencement=docs,records,info available or actual institution of audit,whichever LATER.
commissioner satisfied, may with written reasons extend by further 6 months.

during audit,Authorised Officer may require regstd. person-

facility to verify books/other docs
furnish info for timely completion

@ conclusion,PO shall within 30 days inform the person about findings/rights/obligations and reasons for findings.
detection of tax unpaid/short paid/erroneously refunded/ITC wrongly availed or utilized,PO may initiate action under S.73/74.

Audit Procedure (Rule 101)

period of audit=FY/part
PO issues notice in GST ADT-01 per S.65(3)
PO assisted by officers/officials, verify docs per book of a/c, returns/statements furnished and other particulars mentioned above.
PO informs discrepancies and person replies followed by PO finalising the findings after due consideration of reply.
@ conclusion,PO informs findings under S.65(6) in GST ADT-02

Special Audit (S.66)

at any stage of scrutiny,inquiry,investigation or other proceedings,officer not below asst. commissioner as per case's nature/complexity opines that value incorrectly declared/credit exceedingly availed, he may with commissioner's prior approval, direct a regstd. person in written to get his record examined/audited by CA/CMA as commissioner deems fit.
CA/CMA nominated shall within 90 days submit a report, duly signed and certified to said asst. commissioner (AC) mentioning prescribed particulars.

app to AC by regstd. person/CA/CMA or for any material/sufficient reason,extended by a further 90 days.

(1) effects notwithstanding that accounts audited under other provisions
person given the opportunity of being heard for gathered material to be used in a proceeding.
examination/audit expenses including remuneration of professionals determined and paid by commissioner which shall be final.
if it results in tax unpaid/short paid/erroneously refunded/ITC wrongly availed or utilised,PO may initiate action under S.73/74.

Rule 102:direction in GST ADT-03 to get records audited and a person informed of findings in GST ADT-04.

Part-B (Demand and Recovery)

tax paying liability rests on taxpayers, as payable on self-assessment. so,there is every possibility of short/non payment. if such liability is wrongly assessed, may be per taxes collected but not paid/short paid,etc.

S.73/74 state circumstances of serving Show-Cause Notices (SCNs) for tax recovery+interest/penalty.

Pre SCN communication

govt. has obligated the PO to communicate tax,interest or penalty to assessee and deposit the amt.

Rule 142(1A):PO shall before service of notice under S.73/74(1) shall communicate tax,interest,penalty in part A of GST DRC-01A.

R.142(2A):if partial payment is made or submissions made against proposed liability, such made in part B of GST DRC-01A and S.73/74 initiated on these responses in part B.

Determination of tax unpaid(S.73)

appears to PO that discrepancy occurred not on purpose,serve notice requiring to show-cause why he shouldn't pay amt.+interest under S.50 and penalty leviable.
notice issued at least 3 months prior to time limit in (10) for issuing order
notice issued,PO may serve statement containing amt. details for periods not covered in (1).
statement service deemed notice service subject to condition that grounds relied are the same as earlier notice.
A person may before notice/statement service, pay tax+interest per own ascertainment/per PO and inform PO in writing.
PO on receipt of info,shall not serve notice/statement for tax paid/penalty payable.
PO opines that amt. paid falls short,issue notice w.r.t. short amt.
A person pays tax+interest within 30 days of SCN,no penalty payable and all proceedings deemed concluded.
PO shall after considering representations determine tax,interest,penalty=10% tax/10,000, whichever is HIGHER and issue an order.
order issued within 3 years from the due date of furnishing annual return for FY/erroneous refund.
notwithstanding (6,8),penalty payable where self-assessed tax or tax collected is not paid within 30 days from the due date of tax payment.

Rule 142

representation per S.73/74(9)/76(3) or reply to any notice whose summary was uploaded, in GST DRC-06.
order summary under S.52/62-64/73-76/122-125/127/129-130 electronically uploaded in GST DRC-07 specifying tax,interest and penalty.

order summary treated as recovery notice

order rectification per S.161 or order withdrawn,summary of withdrawal/rectification order in GST DRC-08.

tax unpaid with Fraud,Wilful Misstatement,Fact Suppression (S.74)

PO shall serve notice if discrepancy is founded to evade tax
notice issued at least 6 months prior to the time limit in (10)
statement after notice served containing details of discrepancy
statement deemed service notice
payment before the notice was served,pay tax+int. under S.50 and penalty=15% of tax on his own ascertainment/by PO and inform in writing.
PO on receipt of info not serve any notice
shortfall in payment, notice issued highlighting such shortfall
payment of tax+int. and penalty=25% tax within 30 days of notice issues,all proceedings deemed concluded.
PO considers representation determine tax,interest,penalty due and issue an order.
above order issued within 5 years of the due date of furnishing annual return for FY of discrepancy.
The person served with the order pays tax+int. and penalty=50% within 30 of order communication,all proceedings deemed concluded.
"all proceedings" not to include proceedings under S.132
Rule 142 equally applicable

Case law:Anand Nishikawa Co. Ltd. v/s Commissioner of Central Excise, Meerut - Supreme Court

General Tax Determination(S.75)

notice served,order issued is stayed by the court,Appelate Tribunal, such stay excluded in computing S.73/74(2,10).
AA,AT,court concludes that notice issued under S.74(1) is unsustainable as charges are not established,PO shall determine tax payable deeming as if a notice was issued under S.73(1).
order required to be issued per AA,AT,court,issued within 2 years of communication of direction.
opportunity of hearing granted to where written requests were received or where adverse decisions contemplated.
PO on sufficient cause,grant time and adjourn hearing for written reasons.

adjournment granted only thrice

PO sets out relevant facts and basis of decision
tax,interest and penalty demanded not be in excess of amt. in notice and no demand confirmed on grounds other than ones in the notice.
AA,AT,court modifies tax,interest and penalty,stand modified
interest short/not paid payable irrespective of mention in order
adjudication proceedings deemed concluded if order not issued within 3 years/5 years per S.73/74.
issue on which,AA,AT,court gave decisions prejudicial to revenue interest and an appeal against such decision,period of appeal excluded in computing S.73/74(10) where proceedings initiated by issuing SCN.
notwithstanding S.73/74,self-assessed tax per return remains unpaid or interest is unpaid,recovered as per S.79.
no penalty for the same act/mission imposed on the same person under this act.

monetary limit for issuing SCN/order under S.73/74

Rule 142A:Procedure for dues recovery

summary of order issued creating demand recoverable consequent to proceedings recovered and uploaded in GST DRC-07A and demand of order posted in Part II of e-liability ledger in GST PMT-01.

order's demand rectified/modified/quashed including in appeal/review/revision,summary uploaded in GST DRC-08A and PART II of e-liability ledger updated.

Tax collected but not paid to govt.(S.76)

notwithstanding anything contrary in order/direction of AA,AT,court,every person who has collected tax shall forthwith pay to govt. irrespective of supplies being taxable or not.
PO may serve notice requiring show-cause why amt. shouldn't be paid and why penalty shouldn't be imposed.
PO after considering representations,determine due amt.
additionally liable to pay interest under S.50 from the date amt. collected to date of payment to govt.
opportunity of hearing granted where written request received
PO issues order within a year from notice issued
The order issue stayed by court,AT,stay period excluded in computing 1 year.
PO sets out relevant facts and basis of decision in his order
amt. paid to the govt. adjusted against tax payable

surplus left after adjustment, credited to Fund or refunded to person bearing incidence.
The person bearing incidence may apply for a refund per S.54

Tax wrongfully collected and paid to govt.(S.77)

intra-state supply subsequently held as inter-state,refunded for tax paid.

paid IGST subsequently held as intra-state not required to pay interest on tax payable.

Recovery Proceedings(S.78)

amt. payable per order paid within 3 months from service of such order,failing which,recovery proceedings initiated.

PO considers expedient,require a person to pay within less than 3 months with written reasons.

Tax Recovery(S.79)

amt. payable to the govt. not paid,PO shall recover by any of the following modes:

may deduct/require other specified officers to deduct from money owing under PO's control/specified officer
recovery by detaining/selling goods belonging to the regstd. person

PO,by written notice, requires payment to the govt. as sufficient to pay the due.
noticees bound to comply,where issued to the Post Office,banking co. or insurer,not necessary to produce a passbook/deposit receipt/policy or other docs for entry,endorsement before payment is made; notwithstanding customs.
noticee fails to pay,deemed defaulter and all consequences shall follow.
The officer issuing notice,may,amend/revoke notice or extend time for payment.
A person making payment in compliance with notice deemed to make payment under authority of the defaulter constituting good/sufficient discharge of liability.
person discharging liability to defaulters personally liable to govt. for liability discharged or default amt.whichever is LESS.
noticee proves to the issuer's satisfaction that money demanded wasn't due,nor likely to become due
nothing in this section deemed to require noticee to pay

PO may prepare a signed certificate specifying amt. due and send to District Collector of person's residence/business/other authorised officer and proceed to recover specified amt as it is arrear of land revenue.
notwithstanding CrPC,PO may apply to the magistrate to recover amt. as if it were imposed as such.

bond/other instrument terms provide due amt. recovered per (1),amt. without prejudice to any modes of recovery,recovered accordingly.
tax,interest,penalty payable remains unpaid,PO during recovery, recover as if it were arrears of S/UTGST and credit the govt.
amt. recovered<amt. due, credited to a/c of respective govt. proportionately.

Rule 143-146: GST DRC 09-15

Tax Payment in installments(S.80)

on app filed,commissioner may,for written reasons,extend time for payment,other than self-assessed liability due in monthly installments<24 subject to interest payment under S.50 and other prescribed conditions.
default in payment of single installment on due date,whole o/s balance becomes due/payable on that date being liable for recovery without further notice served.
Rule 158:GST DRC-20,21

Property transfer=void cases(S.81)

person,after amt. becomes due,creates charge by sale/mortgage/exchange/other mode for defrauding govt. revenue,such charge=void.

not void if made for adequate consideration,in good faith and without notice of proceedings pendency/sums/tax payable,with PO's permission.

Tax to be first charge on property(S.82)

notwithstanding anything contrary except IBC,2016, tax,interest,penalty payable shall be 1st charge on property.

Rule 151-160:GST DRC 16,18,19,24

Rule 147:recovery by property sale

property list prepared by PO
properties seized by PO
sale notice in GST DRC-16
all properties remain affixed till sale confirmed
auction/e-auction notice in GST DRC-17

PO may mention pre-bid deposit amt.
last day for bid submission/auction date not earlier than 15 days from DRC-17 subject to deviation for perishable/hazardous goods or PO finds holding cost>expected realisable value.

stamp duty for property transfer borne by govt
defaulter pays due under recovery amt. including recovery expenses before the issue of DRC-17,PO shall cancel the auction.
no bidder found,re-auction can be initiated by PO

Provisional attachment to protect revenue in certain cases (S.83)

during proceedings pending under S.62-64,67,3-73,commissioner deems it necessary by written order,attachment of any property including a bank a/c of the taxable person.

attachment ceases to have effect after expiry of 1 year from commissioner's order.

Rule 159:DRC-22/23

Continuation/Validation of recovery proceedings(S.84)

demand notice for tax,interest,penalty,other amt. known as "govt. dues" and an appeal/revision app is filed/other proceedings initiated,then:

where such dues are enhanced,the commissioner serves demand notice and recovery proceedings covered by demand notice served before disposal of appeal/revision/proceedings continue from immediately before disposal.
where dues reduced-

not necessary for commissioners to serve fresh demand notice
commissioner intimates reduction to concerned person/authority
recovery proceedings initiated per demand notice prior to disposal of appeal/revision/proceedings continued as per amt. reduced from pre-disposal stage.

Rule 148:no officer/person having duty to perform under sale shall bid for,acquire,attempt to acquire interest in sold property.

Rule 149:no sale on Sunday/other general holidays/notified days in the area of sale.

Rule 150:PO may seek assistance from the officer(s)-in-charge of the jurisdictional police station as necessary.

Part-C (Advance Ruling)

get clarifications/answers related to specified matters like supply,taxpayers can approach Authority for Advance Ruling (AAR).

if AAR can't issue it,people can approach the Appellate Authority for Advance Ruling (AAAR) or National AAAR.

ADVANCE RULING

per the OECD report(2004)-any advice,info or undertaking provided concerning tax situations and on which they are entitled to rely on.it is also an interpretation of tax laws by tax authorities.

S.95-106 of Ch XVII and Rule 103-107A

for supplies undertaken or proposed to be undertaken

ADVANCE RULING Objectives

certainty in advance for tax liability
attract FDI
reducing litigation
disclose ruling efficiently/transparent/inexpensive

under S.97(2), can be sought for

supply classification
notification applicability
determining supply time/value
ITC admissibility paid/deemed paid
determining tax liability
clarification on registration requirements of applicant
activity resulting in supply

Procedure on app receipt(S.98)

apps not admitted if same already pending/decided in GST proceedings

appeal against authority's AR order

AAAR(S.99)

subject to this chapter,AAAR constituted under S/UTGST deemed appellate authority for that state/UT.

appeal to AAAR(S.100)

concerned officer,jurisdictional officer,aggrieved applicant may appeal
filed within 30 days from ruling communicated to appellant

AAAR may extend with further <30 days if sufficient cause shown

every appeal in prescribed form/fee/verification

AAAR order(S.101)

after giving the opportunity of being heard to parties in order to confirm/modify the ruling.
order passed within 90 days of filing appeal under S.100 or reference under S.98(5).
if members differ,deemed that no advance ruling can be sought
AR copy duly signed/certified by members sent to concerned parties after pronouncement.

National AAAR(S.101A)

consisting of the president,technical members for the centre and respective states.
technical members appointed by the selection committee after being satisfied of no financial/other interests.
salary,allowances and other T&C as prescribed and not varied to their disadvantage post-appointment.
The president=3 years from entering office or 70 years of age,whichever is EARLIER and eligible for reappointment.
technical members=5 years/65 age,whichever is EARLIER and eligible for reappointment.
govt., with CJI's concurrence suspend members for whom reference made to the supreme court judge.

appeal to National AAAR(S.101B)

for questions in S.97(2),conflicting ARs given by 2 or more states/UTs/both under S.101(1,3),officer of respective state/UT authorised by commissioner/applicant (distinct persons) may prefer appeal.
every appeal filed within 30 days from which the last conflicting ruling is communicated.

The officer authorised may file appeal within 90 days the ruling communicated.
on satisfaction of sufficient cause from presenting appeal, allow further <30 days.

appeal in such form/fee/verification as prescribed

Nation AAAR order(S.101C)

after giving the opportunity of being heard,pass such orders as it thinks fit,confirming/modifying the ruling appealed against.
members differ in opinion,then decided according to majority
orders passed within 90 days from filing appeal under S.101B
copy of advance ruling, duly signed/certified by members sent to all concerned parties.

AR Rectification(S.102)

without amending a substantial part, only if a mistake is apparently identified from records within 6 months of order.

own motion/brought to notice by prescribed officers/applicants
opportunity of being heard if prejudicial to applicant/appellant

AR applicability(S.103)

binding only on the applicant who sought it or concerned/jurisdictional officer.
applicants can be distinct persons and persons having the same PAN
binding unless law,facts or circumstances supporting the original AR have changed.

AR to be Void in certain circumstances(S.104)

authorities find that the applicant obtained a ruling by fraud,suppression of material facts,fact misrepresentation,declaring AR be void ab initio and all provisions applicable as if AR was never made.

Rules for procedure to avail AR

Rule 103:govt. shall appoint officers not below the Joint Commissioner as AAR members.

Rule 104:app under S.97(1) made in GST ARA-01 and accompanied by 5000 rupees deposited under S.49.verification all relevant docs signed per Rule 26.

Rule 105:true AR copy certified by any member

Rule 106:appeal against AR issued under S.98(6) in GST ARA-02 and accompanied by 10000 deposited per S.49. made by a concerned/jurisdictional officer in GST ARA-03 with no fee payable.

Rule 107:AR copy signed by members sent to all concerned parties per S.101(4).

Rule 107A:notwithstanding this chapter,E-filing to include manual filing in forms appended to these rules.

CASE LAWS-

1. Sutherland and Mortgage Services INC vs. Principal Commissioner (2020) – Kerala High Court
2. In Re Swayam (2020) – West Bengal AAR

3. In Re Leprosy Mission Trust India (2020) – West Bengal AAR

4. In re Portescap India Private Limited (2020) – Maharashtra AAR

5. In re HP Tourism Development Board (2020) - GST AAR Himachal Pradesh

6. In re Tamil Nadu Textbook and Educational Services Corporation (2020) - GST AAR Tamilnadu

Part-D (Appeals & Revision)

Ch XIII (Rule 108-116) and S.107-121

GST APL 01 and other forms:

either PO passes a prejudicial order to the taxpayer's interest or dept. feels the order is incorrect,they can make an appeal.

Appeal Hierarchy

only the aggrieved can appeal from below-

Appeal to AA(S.107)

appeal within 3 months from communication of order/decision
commissioner may on his own motion,request from commissioner of S/UTGST,call for or examine record of proceedings of adjudicating authority for satisfying legality/propriety and order a subordinate officer to apply to AA within 6 months of communication.
The officer's app dealt as if it were an appeal and all provisions apply to such apps.
AA may allow a further 1 month for appealing if satisfied with a sufficient cause.
every appeal as in such form/verification as prescribed
no appeal filed under (1),unless the appellant has paid:

full tax,interest,fine,fee,penalty from impugned order
10% of the remaining tax in the dispute <25cr.

if appellant paid above,recovery proceedings for balance amt. deemed stayed.
AA to give opportunity of being heard to appellant
AA may grant time to parties on sufficient cause and adjourn hearing for written reasons; adjournment granted <3x.
AA may allow appellant to add a ground in appeal @ hearing,if satisfied that it's omission wasn't wilful/unreasonable.
AA after making further necessary inquiry order to modify,confirm or annul but shall not refer back to adjudicating authority.

order enhancing fee,penalty,fine in lieu of confiscating goods of greater value or reducing refund,ITC not passed unless appellant granted opportunity of showing cause against proposed order.
AA opines a discrepancy,no order requiring appellant to pay passed unless appellant given notice to show cause considering time limits under S.73/74.

AA orders disposing appeal in writing and shall state points of determination,decision and reasons.
where possible,hear and decide appeals within 1 year from filing; excluding a period of stay on order by a court/tribunal.
on disposal,communicate order to appellant,respondent and adjudicating authority.
copy of order passed to jurisdictional commissioner/designated authority
every order passed be final/binding on parties subject to S.108,113,117,118

Applicable Rules

Rule 108

appeal in GST APL-01 with relevant docs as notified by commissioner and a provisional acknowledgement issued immediately to appellant.
grounds of appeal and verification form signed per Rule 26
certified copy of decision/order appealed against submitted within 7 days of filing appeal and a final acknowledgement indicating appeal no. issued by AA in GST APL-02.

After a certified copy is submitted within 7 days,appeal filing date=issue of provisional acknowledgement and if submitted after 7 days, date=submission date.
appeal treated filed after issue of final acknowledgement

Rule 109

app under S.107(2) in GST APL-03+relevant docs
certified copy of decision/order appealed against submitted within 7 days and appeal no. generated.

Rule 109A

person aggrieved/officer under this act/S/UTGST may appeal to-

commissioner(appeals) if order passed by Additional/joint commissioner
officer not below Joint commissioner (appeals) if ordered by deputy/asst. commissioner/superintendent within 3 months from communication.

Revisional Authority Powers(S.108)

subject to S.121 and rules made thereunder,authority may on its own or upon info received or on commissioner's request,call for and examine records of proceedings.

considers a decision/order to be erroneous,prejudicial to revenue interest,illegal,improper,not considered material facts,they may stay operation and after giving an opportunity of being heard along with making inquiries,pass orders as it thinks just and proper.

shall not exercise above power if-

order subject to an appeal under S.107,112,117,118
The period under S.107(2) has not yet expired or more than 3 years expired after passing a revised decision/order.
order already taken for revision earlier
order passed in exercise of powers under (1)
order on a point not raised/decided before expiry of 1 year from order in appeal or before 3 years as in (2[b]),whichever is LATER.

every order passed in revision,subject to S.113,117,118 shall be final and binding.
if it involves issue on which Tribunal/high court has given decision and an appeal is pending,period spent between filing and decision of appeal shall be excluded for (2[b]) if proceedings issued by notice.
order issuing stayed,such stay excluded in period of limitation

Rule 109B:notice/order for revision

The authority decides to pass an order likely to affect adversely,revisional authority serves notice under GST RVN-01 and gives a reasonable opportunity of being heard.
order summary in GST APL-04 indicating final amt. of demand

Appellate Tribunal and benches(S.109)

constituted on council recommendations by notification
powers exercised by national bench and designated regional/state (area) benches with constitution roughly the same as S.101A.
The national bench has jurisdiction where issues are related to the place of supply and state benches have jurisdiction otherwise.
business can be transferred/distributed by general/specific order
if members differ in opinion,they decide as per majority or refer to the president if no majority is reached.
govt. can consult the president and transfer judicial/technical members
no act/proceeding questioned/invalid on vacancy/defect in the tribunal's constitution.

S.110:president,members,qualification,appointment,service conditions as in S.101A.

Procedure before Appelate Tribunal(S.111)

shall not be bound by CPC,1908 but guided by natural justice and this act/rules and have power to regulate its own procedure.
for discharging its functions have the same powers as a civil court under CPC,1908 while trying a suit.
order may be enforced as if it were a decree by court in pending suit and it shall be lawful to send for execution of orders to court within local limits of whose jurisdiction-

order against co.,RO situated
person,resident/carries on business or personally works for gain

all proceedings deemed judicial within IPC and AT deemed a civil court for CrPC,1974.

Appeals to AT(S.112)

aggrieved can appeal within 3 months from communication of disputed order.
AT may refuse to admit such appeal where tax,ITC,difference,fine,penalty <50000.
commissioner may on own motion or request from S/UTGST commissioner call for and examine records satisfying w.r.t legality/propriety and may direct a subordinate to appeal within 6 months from order passing.

dealt as if it were an appeal under S.107(11)/108(1) and all provisions applicable to appeals apply here.

on receipt of notice of appeal,the respondent,notwithstanding his own appeal, within 45 days of notice receipt,verified cross-objections memo against part of the order appealed against and such memo disposed as if appeal under (1).
may admit appeal within 3 months/45 days after expiry of period in (1,4) if satisfied with a sufficient cause.
appeal in such form,verification and accompanied by prescribed fee
no appeal filed unless the appellant paid full charges,20% of disputed tax+amt. in S.107(6) <50cr.
amt. paid as above,recovery proceedings deemed stayed till appeal is disposed of.
every app in appeal for error rectification or restoration of appeal/app accompanied by prescribed fees.

AT Orders(S.113)

after giving the opportunity of being heard to parties,pass orders or refer back to concerned authority with directions as it thinks fit.
if sufficient cause shown,at any stage of hearing,grant time and adjourn hearing for written reasons.(adjournment <3x)
may amend order passed under (1) to rectify error apparent within 3 months of issuing.

no amendment enhancing assessment/reducing refund,ITC,increasing liability made unless party given opportunity of being heard.

as far as possible,hear and decide appeals within 1 year of filing
send a copy of every order passed to the concerned authority, appellant and commissioner.
save as S,117,118 orders passed shall be final and binding

Additional Rules

Rule 110:appeal to AT

under S.112(1) filed along with relevant docs as notified by the registrar in GST APL-05 and a provisional acknowledgement issued to the appellant immediately.
memo of cross-objections filed as notified by registrar in GST APL-06
both signed per Rule 26
certified copy of decision/order appealed against along with fees submitted within 7 days of filing appeal and a final acknowledgement,indicating appeal no. issued in GST APL-02 by registrar.

filing date depends upon submission as in Rule 108

fee for filing appeal=1000 for every 1 lakh of tax,ITC or respective difference or fine,fee,penalty determined in disputed order <25000
no fee for app of error rectification in S.112(1)

Rule 111:App to AT

GST APL-07 in S.112(3)
certified copy of disputed decision/order submitted within 7 days for appeal no. to be generated by the registrar.

Rule 112:production of Additional Evidence

not allowed to produce evidence other than produced before adjudicating authority except in the following:

The above authority refused to admit evidence which ought to have been submitted.
appellant prevented by sufficient cause from producing evidence relevant to appeal.
authority made order without giving sufficient opportunity of adducing evidence.

no evidence admitted unless AT/AA records written reasons for admission
no evidence admitted unless adjudicating authority/officer authorised allowed a reasonable opportunity-

to examine evidence/doc or to cross-examine witness produced
produce rebuttal evidence/witness

nothing affects the power of AA/AT to call for production of any doc/evidence and disposing appeal.

Rule 113:AA/AT Order

along with order in S.107(11),issue summary in GST APL-04 indicating final confirmed demand amt.
jurisdictional officer shall issue a statement in GST APL-04 indicating final demand amt.

Financial/Admin. Powers of the President(S.114)

over national/regional benches as prescribed. also have authority to delegate as he may think fit to other members/officers while continuing to supervise them.

Interest on Refund paid for appeal admission(S.115)

amt. paid under S.107(6)/112(8) required to be refunded consequent to AA/AT's order,int. @ S.56 payable from payment till refund.

Appearance by Authorised Representatives(S.116)

entitled to appear before an officer is appointed for proceedings,may otherwise when required to appear personally,appear by authorised representatives.
"authorised representative"=being:

his relative/regular employee
advocate entitled to practice in a court and not debarred from practicing.
PCA/PCMA/PCS and not debarred from practice
retired officer of the commercial tax dept. of any state/UT or servicing govt. not below the rank of Group-B gazetted Officer for not less than 2 years.

not entitled to appear for 1 year from retirement/resignation

authorised as a GST practitioner

no person-

dismissed/removed from govt. service
convicted of offence under law passed by the State Legislature dealing with taxes on sale/supply.
guilty of misconduct
adjudged insolvent for period of insolvency

person disqualified under S/UTGST deemed disqualified here

Rule 116:other than those in (2),found upon inquiry,guilty of misconduct, commissioner may,after providing the opportunity of being heard,disqualified from appearing.

Appeal to the High Court(S.117)

a person aggrieved with orders of state/area benches file appeal and HC shall admit if it involves substantial question of law.
appeal filed in prescribed form/verification within 180 days from order receipt or afterwards with sufficient cause.
appeal heard on formulated substantial questions of law and respondents allowed to argue for its involvement.

appeal may be heard for other substantial legal questions if the court is satisfied and records written reasons.

decide and deliver judgement containing grounds & award costs as it deems fit.
determine issues-

not determined by state/area benches
wrongly determined by benches

appeal heard by a bench of not less than 2 judges and decided a/c to majority or a majority of bench judges+other HC judges.
effect given to judgement on the basis of a certified copy
CPC applies to appeals.

Rule 114:appeal in GST APL-08 and appeal grounds/verification form in APL-08 signed as per Rule 26.

Rule 115:jurisdictional officer issues statement in GST APL-04 indicating final confirmed demand amt.

Appeal to the Supreme Court(S.118)

appeal from order passed by national/regional bench or judgement/order of HC which HC certifies to be fit for appeal.
CPC,1908 applies
HC judgement is varied/reversed,effect given to SC order per S.117

S.119:sums due to govt. under orders passed payable accordingly

Appeal not to be filed(S.120)

The board may be on council recommendations,issue order/directions/instructions fixing monetary limits as it may deem fit,for regulating appeal filing/apps by central tax officers.
if pursuance to orders,officer didn't file appeal, it shan't preclude officers from filing if another case involves issues/question of law.
no party shall contend that officer acquiesced in decision on disputed issue by not filing.
hearing appeal with regard to circumstances of non-filing

Non-Appealable Decisions/Orders(S.121)

commissioner/authority order to direct transfer of proceedings among officers.
seizure /retention of books,registers and other docs
sanctioning prosecution
under S.80

pre-deposits required to be refunded subsequent to orders made +int. under S.56.

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November 16, 2023

CS Professional:Advanced Tax Laws [Ch-5 Assessment,Audit, Scrutiny,Demand and Recovery,Advance Ruling,Appeals and Revision]