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Demands & Appeal under GST
Demand Under GST
In the GST regime Proper Officer is empowered to issue show cause notice to seek recovery of any tax not paid or short paid or erroneously refunded or input tax Wwrongly availed or utilized The Provisions Prescribed under GST Act for demand and recovery of tax are similar to existing Provisions under Customs, Excise and Service Tax.. The provisions relating to conclusion of proceedings before preferring an appeal is detailed out as below:
Determination of tax not paid or short paid or erroneously refunded or input tax credit wrongly availed or utilised for any reason other than fraud or any wilful misstatement or suppression of facts.
1. The provision provides for –
(a) Service of notice by proper officer1;
(b) Notice shall be served on the person who is chargeable with tax, who has –
- Not paid or short paid the tax;
- Received the erroneous refund;
- Wrongly availed or utilized input tax credit;
(c) Such amounts as mentioned above shall be required to be determined along with the applicable interest as per Section 50 and penalty as specified.
(d) The notice has to be issued at least three months prior to the time limit of three years for issuance of order
2. Where no notice is required to be issued for demand: In case proper officer has already issued an notice on the person for the period specified under section 73(1), subsequently if such officer finds similar issue for any subsequent period, then in such case instead of issuing a detailed notice for such subsequent period, proper officer may issue a statement for for recovering the amount from such person and such statement shall be deemed to be a notice as per Section 73(1) on the condition that the grounds relied upon are the same, for the earlier notice issued for previous period.
3. Voluntary payment of tax and interest before issue of notice/statement: Voluntary payment of tax and interest as per Section 50 before issue of notice/statement can be done either
- As per the ascertainment of the notice or;
- As per the ascertainment of the proper officer; and the same shall be intimated to the proper officer after receipt of which the officer shall not serve any notice / statement to the extent of such payment. There can be no further proceedings with regard to tax and penalty so paid.
4. When the amount paid as per the ascertainment of the assessee falls short, the proper officer shall issue a notice for the amount of shortfall.
5. Where the assessee makes the payment of tax along with interest within 30 days of issuance of Notice / Statement, then in such case no penalty shall be payable and it shall be deemed that all the proceedings have been concluded. 6. After considering the representations of the person, the proper officer shall issue an order consisting the amount of tax, interest and penalty. tax + interest + penalty. The
Appeals under GST
(i) The appeal is to be filed by the assessee within a period of 3 months from the date of communication of decision or order in Form GST APL 01 electronically or otherwise as notified by the Commissioner against a provisional acknowledgement. The grounds of appeal and form of verification must be duly signed and a hard copy of the appeal in triplicate together with a certified copy of the decision is to be filed before the Appellate Authority within 7 days of filing the appeal electronically. Thereafter, a final acknowledgement indicating the appeal number shall be issued in Form GST APL 02 by the said authority In such a situation thee appeal shall be deemed to be filed on the date on which the provisional acknowledgement stands issued.
In case the hard copy is filed after a period of 7 days the date of filing of appeal shall be the date of issue of final acknowledgement.
(ii) The Commissioner of Central / State or any Union territory with a view to satisfying himself about the legality or propriety of any order or decision direct a subordinate officer to file an application before the Appellate Authority within six months from the date of communication of decision or order in Form APL GST 03 electronically or otherwise as notified against issue of an acknowledgement. A hard copy of the appeal in triplicate together with a certified copy of the decision is to be filed before the Appellate Authority within 7 days of filing the appeal electronically and an appeal number shall be generated accordingly.
(iii) The appellate authority in either of the above cases is empowered to condone the delay upto a period of 1 month.
(iv) Appeal to be filed in prescribed form duly verified in prescribed manner along with —
- Amount of tax, interest, fine, fee & penalty, as is admitted, in full; and
- pre-deposit of sum equal to 10% of remaining amount of tax in dispute.
(v) On payment of above amount, the recovery proceedings for balance amount are stayed. (vi) Maximum 3 adjournments shall be granted to a party on showing reasonable cause to be recorded in writing.
(vii) Appellate authority may allow any additional grounds not specified in the grounds of appeal on being satisfied that the omission was not wilful or unreasonable.
(viii) Appellate authority to pass the order confirming, modifying or annulling the decision or order appealed against but shall not remand the case back to the adjudicating authority.
(ix) Opportunity of being heard to be granted in case of order for enhancing fees or penalty or fine in lieu of confiscation of goods or reducing amount of refund/input tax credit after issuing show cause notice.
(x) The appellate authority has power to issue show cause notice in case it is of the opinion that any tax has not been paid or short paid or erroneously refunded or input tax credit is wrongly availed or utilised.
(xi) Appellate authority to hear and decide the appeal, wherever possible, within a period of 1 year from the date of filing.
(xii) Appellate authority to communicate the copy of order to the appellant, the respondent, the adjudicating authority, jurisdictional Commissioner of CGST, SGST and UTGST.
(xiii) The Appellate Authority shall, along with its order under sub-section (11) of section 107 of the Act, issue a summary of the order in FORM GST APL-04 clearly indicating the final amount of demand confirmed.
Appellate Tribunal
The Central Government shall constitute a National Goods and Service Tax Appellate Tribunal (‘National Appellate Tribunal’) headed by a national president Any person aggrieved by decision of first Appellate Authority may prefer an appeal before Appellate Tribunal. Discretionary power has been given to Tribunal to admit an appeal wherein the amount under dispute does not exceed Rs. 1 Lakh including amount of fine , fee or penalty. An Appeal before the tribunal needs to be filed within 3 months from the date of communication of the order sought to be appealed against. No time limit for tribunal to accept condo nation of delay application if it is satisfied that there was sufficient reason for not filing the appeal within time.
In case of appealed to be filed by the department Duly constituted Committee by CBEC will be responsible for taking decisions with respect to filling of appeals against orders passed by first Appellate Authority. The party against whom appeal is preferred may file cross objection within 45 days of the receipt of notice .
The National Appellate tribunal will have one branch viz State GST Tribunal (‘ State Appellate Tribunal’ for each state headed by state president.This is the area where cost accountants can exercise their interpretational skill of GST law as the success of any Tax professional to a large extend depends upon his /her ability to handle litigations, the existence of which is inevitable for any Tax law.
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