TaxTMI 
TaxTMI 
TaxTMI 
Appeals
Appeal may be filed by a taxable person against the order of the Adjudicating Authority and also by the Department by filing an application before the Appellate Authority. The Appellate Authority shall not below the rank of Commissioner, authorised by the Board.
Appeal by the taxable person
Section 29(1) of the Act provides that any taxable person aggrieved by any order of the adjudicating authority may, within a period of 3 months from the date of receipt of the order appealed against by such person, appeal to the appellate authority in Form HSNS – 01, along with the relevant documents, including grounds of appeal and the decision or order appealed against. The appeal shall be filed only after the payment of pre-deposit-
- in full, such part of the amount of cess, interest, fine, fee and penalty arising from the impugned order, as is admitted by him; and
- a sum equal to 10% of the remaining amount of cess in dispute arising from the said order, subject to a maximum of Rs.25 crores in relation to which the appeal has been filed.
If the appellant paid the pre-deposit, the recovery proceedings for the balance amount shall be deemed to be stayed.
Appeal by the Department
Section 29(2) of the Act provides that the proper officer, not below the rank of Commissioner, may on his own motion, call for and examine the record of any proceedings in which an adjudicating authority has passed any order under this Act, for the purpose of satisfying himself as to the legality or propriety of the such order. The proper officer may, by order, direct any officer subordinate to him to apply to the appellate authority within 6 months from the date of communication of the order of the adjudicating authority for the determination of such points arising out of the said decision or order as may be specified by such proper officer in his order.
An appeal to the appellate authority shall be filed in FORM HSNS APL-01 along with the relevant documents, including grounds of appeal and the decision or order appealed against. If the authorised officer makes an application to the appellate authority, such application shall be dealt with by the appellate authority as if it were an appeal made against the decision or order of the adjudicating authority. Such authorised officer were an appellant and the provisions of this Act relating to appeals shall apply to such application.
Self-certified order copy
The taxable person or the Department, in filing appeal, shall file the self-certified order copy within 7 days from the date of submission of the appeal.
Acknowledgment
Every appeal under this section shall be verified in such manner, as may be prescribed. An acknowledgement indicating the appeal number shall be issued to the appellant immediately by the appellate authority or an officer authorised by him in this behalf and the date of issue of the acknowledgment shall be considered as the date of filing of the appeal.
If the self-certified copy is not produced within 7 days from the date of appeal, the date of submission of such copy is considered as the date of filing.
The appeal shall be treated as filed only when the acknowledgement, indicating the appeal number, is issued.
Withdrawal of appeal
Rule 26 provides for the withdrawal of the appeal filed before the Appellate Authority. The said application may be filed before the Appellate Authority admits the appeal. If the acknowledgment has been issued, the withdrawal of the said appeal shall be subject to the approval of the appellate authority and such application for withdrawal of the appeal shall be decided by the appellate authority within 7 days of filing of such application.
Fresh appeal
Fresh appeal may be filed by the appellant pursuant to such withdrawal shall be filed within the limitation period.
Order of appellate authority
The appellate authority shall give the appellant a reasonable opportunity of being heard. The appellate authority 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.
The appellate authority shall, after giving the appellant a reasonable opportunity of being heard in the matter and after making such further inquiry as may be necessary, pass such order, as he thinks just and proper, confirming, modifying or annulling the order appealed against but shall not refer the case back to the adjudicating authority that passed the said order. The order of the appellate authority disposing of the appeal shall be in writing and shall state the points for determination, the decision thereon and the reasons for such decision. The appellate authority shall, where it is possible to do so, hear and decide every appeal within a period of 6 months from the date on which it is filed.
Appeals to Appellate Tribunal
Section 30 of the Act provides that any person aggrieved by an order of the appellate authority or revisional authority, may appeal to the Appellate Tribunal against such order in Form HSNS APL - 02 along with the relevant documents, including a memorandum of cross-objections and the decision or order appealed against.
Acknowledgement
An acknowledgement, indicating appeal number, shall be issued to the appellant immediately. The date of issue of the acknowledgement shall be considered as the date of filing of the appeal. If the self-certified copy of the decision or order is not submitted within a period of 7 days from the date of filing of the appeal, the date of submission of such copy shall be considered as the date of filing of the appeal.
The appeal shall be treated as filed only when the final acknowledgement, indicating the appeal number, is issued.
Production of additional evidence before the Tribunal
The appellant shall not be allowed to product additional evidence except in the following cases-
- where the adjudicating authority/ 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/the appellate authority; or
- where the appellant was prevented by sufficient cause from producing before the adjudicating authority or, as the case may be, the appellate authority any evidence which is relevant to any ground of appeal; or
- where the adjudicating authority/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 shall admit new evidences after recording the reasons for allowing such evidences in writing. The Appellate Tribunal shall admit the new evidences after hearing the Adjudicating Authority and giving 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.
Withdrawal of appeal
The appellant may, at any time before the issuance of the order, in respect of any appeal filed, file an application for withdrawal of the said appeal. Where the acknowledgment 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.
Fresh appeal
Fresh appeal may be filed by the appellant pursuant to such withdrawal within the limitation period.
Order
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 order appealed against, or may refer the case back to the proper officer who passed such order with such directions as it may think fit, for a fresh adjudication, after taking additional evidence, if necessary.
The Appellate Tribunal shall, where it is possible to do so, hear and decide every appeal within a period of 3 years from the date on which such appeal is filed. The Appellate Tribunal shall send a copy of every order passed under this section to the proper officer and the other party to the appeal.
Authorised Representative
Section 31 of the Act provides that Any person who is entitled or required to appear before an adjudicating authority or a revisional authority or the Appellate Tribunal in connection with any proceedings under this Act, otherwise than when required under this Act to appear personally for examination on oath or affirmation, may, subject to the other provisions of this section, appear by an authorised representative.
The Authorised representative may the relative of regular employee of the taxable person or Advocate or a practising Chartered Accountant, practising Company Secretary or a practising Cost Accountant or a retired officer of the Central Government or any State Government or Union territory who, during his service under the Government, had worked in a post not below the rank of a Group-B Gazetted officer for a period of not less than 2 years. Such officers are eligible to appear only after one year from the date of his retirement on superannuation or resignation.
If an authorised representative 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.
Appeal to High Court
Section 32 of the Act provides for filing appeal before High Court against the order of the Appellate Tribunal. The appeal before High Court shall be filed within 180 days from the date of receipt of the order. The High Court may admit the said appeal if it considers that there is a substantial question of law is involved. The High Court is having power to condone the delay in filing appeal if it is satisfied that there was sufficient cause for not filing appeal within the limitation period.
The High Court shall decide the question of law so formulated and deliver such judgment thereon containing the grounds on which such decision is founded and may award such cost as it deems fit. The appeal shall be heard by a Bench of not less than two Judges of the High Court, and shall be decided in accordance with the opinion of such Judges or of the majority, if any, of such Judges.
Appeal to Supreme Court
An appeal shall lie to the Supreme Court from any order passed by the High Court, or from any judgment or order passed by the High Court in an appeal made under section 32 in any case which, on its own motion or on an application made by or on behalf of the party aggrieved, immediately after passing of the judgment or order, the High Court certifies to be a fit one for appeal to the Supreme Court. Where the judgment of the High Court is varied or reversed in the appeal, effect shall be given to the order of the Supreme Court by either side on the basis of a certified copy of the said order.
Author’s comment
There is no provision in the Act to condone the delay of filing appeal either before the Appellate Authority or before the Appellate Tribunal. The Government has to look after this and to make necessary amendments including the provisions for condonation of delay by both the Appellate Authority.