The Maharashtra Government recently issued a trade notice pertaining to Maharashtra Goods and Services Tax (Ninth Removal of Difficulties) Order, 2019 dated January 6, 2020, wherein clarification in respect of GST Appeals in regard to non-constitution of Appellate Tribunal.
The Government received various representations that have been received wherein the issue has been decided against the registered person by the adjudicating authority or refund application has been rejected by the appropriate authority and appeal against the order is pending before the appellate authority.
The Commissioner, in the exercise of its powers conferred by section 168 of the MGST Act issued the clarifications and guidelines in order to clarify the issue and to ensure uniformity in the implementation of the provisions of the law across field formations.
Firstly, the government clarified that Appeal against an adjudicating authority is to be made as per the provisions of Section 107 of the MGST Act.
Secondly, it is clarified that relevant rules have been prescribed for the implementation of Section 107. The relevant rule for the same is rule 109A of Maharashtra Goods and Services Tax Rules, 2017 which pertains to the Appointment of Appellate Authority.
Thirdly, it is clarified, “if the order has been passed by Deputy Commissioner, an appeal has to be made to Joint Commissioner (Appeal). Further, if the order has been passed by Assistant Commissioner or State Tax Officer, an appeal has to be made to the Deputy Commissioner (Appeal) appointed for the same.”
Fourthly, it is clarified, “the appeal against the order passed by appellate authority under Section 107 of the MGST Act lies with appellate tribunal. Relevant provisions for the same are mentioned in Section 112 of the MGST Act.”
Fifthly, it is clarified, “the appellate tribunal has not been constituted in view of the order by Madras High Court in case of Revenue Bar Assn. v. Union of India and therefore the appeal cannot be filed within three months from the date on which the order sought to be appealed against is communicated. In order to remove difficulty arising in giving effect to the above provision of the Act, the Government, on the recommendations of the Council, has issued the Maharashtra Goods and Services Tax (Ninth Removal of Difficulties) Order, 2019 dated 06.01.2020. It has been provided through the said Order that the appeal to tribunal can be made within three months (six months in case of appeals by the Government) from the date of communication of order or date on which the President of the State President, as the case may be, of the Appellate Tribunal enters office, whichever is later.”
Lastly, as of now, the prescribed time limit to make an application to the appellate tribunal will be counted from the date on which the President of the State President enters the office. The appellate authority while passing order may mention in the preamble that appeal may be made to the appellate tribunal whenever it is constituted within three months from the President of the State President enters the office. Accordingly, it is advised that the appellate authorities may dispose of all pending appeals expeditiously without waiting for the constitution of the appellate tribunal.
The guidelines further provided for recovery of dues after disposal of appeal which elaborates as after disposal of a pending appeal under Section 107, if any demand is confirmed or appellate authority has created the additional demand then in such cases taxpayer shall submit a declaration in Annexure-I of Declaration regarding proposed appeal before Appellate Tribunal before the jurisdictional tax officer stating that he is proposing to file an appeal u/s 112(1) against the appeal order. If such a declaration is not submitted within fifteen days from the communication of the said order, then it will be presumed that the taxpayer is not willing to file an appeal against the order and recovery proceedings may be initiated as per the provisions of law.
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