What to do if you have paid penalty under GST – Contest your
case at Appeal Level
Almost
a year has gone, real work under GST begins now. It has been brought to notice
that many taxpayers are being penalized for one or the other contravention of
act. But since Goods and Services Tax Act is a new law and certainly has
interpretational issues, a taxpayer who does not agree with the penalty charged
or tax recovered by the proper officer can prefer an appeal with the Appellate
Authority. As per section 107 of the Central Goods and Services Tax Act, 2017 an
appeal can be filed within 3 months from the date of communication of order.
There is no specific category of orders/intimation which are appealable, rather
any order can be appealed by the taxpayer, except those specifically provided
in clause (a) to Clause (d) of section 121. The orders not appealable as per
section 121 are as follows:
a) An order
of transfer of proceedings from one officer to other
b) Order
pertaining to seizure and retention of books of accounts and records
c)An order
sanctioning prosecution under GST
d) Order for payment of tax and
other amounts in installment.
Apart
from above four, a taxpayer can prefer an appeal against the order passed by
the adjudicating officer.
But there are few
questions which needs to be answered:
1. Where the goods are in transit and
seizure is made in some other state than the state of registration. In which
state the appeal shall be filed?
For instance the company
registered in Delhi causing movement of goods to Mumbai. The vehicle is
inspected in Rajasthan and found carrying deficient documents. The officer
passes the order for levy of penalty. In such a case the appeal shall be filed
by the person causing the movement, in the state in which it is registered i.e.
in Delhi. Since Delhi forms his jurisdictional office, no appeal shall be filed
in Rajasthan although the penalty has been charged in that state.
But where the jurisdictional
officer of the taxpayer is a state authority, in that case an appeal shall be
filed with the Central Commissioner and not with State Commissioner. Where an
order has been passed by the central Commissioner Appeals, the same shall also
be enforceable against the state authority due to cross-empowerment.
2. In how much period does the appeal needs
to be filed by taxpayer?
An Appeal can be filed
within three months from the date of communication of order to the taxpayer.
Verbal communication will not be treated as legal service of notice. The order
needs to be served to the taxpayer at his registered principal place or
additional place of business.
3. Amount of pre-deposit to be made before
filing of appeal?
An Appeal shall be filed
after full deposit of the amount (tax/interest/fees/penalty/fine/fees etc.)
accepted by the taxpayer and 10% of the amount (tax not penalty/interest/fine/fees etc.) under dispute. Once this deposit is made, a stay on recovery
proceedings shall be automatically granted. No separate application for stay of
recovery proceeding needs to be made.
4. Is order of detention or seizure of
transport vehicle appealable under court of law?
In GATI-KINTETSU EXPRESS
PRIVATE LIMITED VERSUS ASSISTANT COMMISSIONER OF STATE TAX, KHARAGPUR RANGE
& OTHERS, Calcutta High Court has held that Section
107 of the Act allows any person aggrieved by any decision or order passed
under the Act of 2017 or the State Goods and Services Tax Act to file an appeal
before the appellate authority as may be prescribed. Section 121 is an
exception to Section 107 of the Act. While Section 107 of the Act makes every
decision or order passed under the Act of 2017 to be appealable, Section 121
makes an exception thereto and states that, few which are recognized in
Sub-section (a) to (d) would not be appealable.
The
petitioner has a statutory alternative remedy available. It would be
appropriate to permit the petitioner to prefer an appeal from the impugned
order before the designated appellate authority, either electronically or
otherwise.
As per
the above order of H’ble Court it has been held that what is barred from appeal
u/s 129 is the seizure and detention of books of accounts and records but not
the vehicle detained and seized by the officer. The court held that the
detention of vehicle is an appealable order u/s 121 of the Act. Therefore where
vehicle is detained due to reasons not permitted under law, an appeal can be
made with the Appellate authority
5. What are the forms to be filed along
with procedure?
For
filing of an appeal, taxpayer needs to file form GST APL -01 electronically or through facilitation centre within 3
months of date of communication of order. Upon submission of GST APL-01, a
provisional acknowledgment shall be issued.
Thereafter
a certified copy of the decision or order appealed against shall be submitted
within seven days of filing of the appeal. Once it is submitted, a final
acknowledgement indicating appeal number shall be issued in FORM GST APL-02. The date of filing of
appeal in such case shall be the date of issue of provisional acknowledgement.
Where
the certified copy of the decision is not submitted within seven days, in such
case the date of filing of appeal shall be the date on which such certified copy
is submitted.
Thanks and Regards
Keshav R Garg
(B.Com, FCA, CS, ISA(ICAI))
Author: Bharat's GST Ready Reckoner
A Handbook on GST
Member: Indirect Tax Committee of CII,
Founder: MyGst.MyTax Foundation
Adviser: Industries Association of Chandigarh
Adviser: Chambers of Chandigarh Industries
Address: 3328, First Floor, Sector 27 D, Chandigarh, India - 160 019
Phones: +91-172-461-3328, +91-98880-90008
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