The Kerala GST Department has issued clarification and guidelines for filing appeals in the absence of the GST Appellate Tribunal.

The Kerala GST Department, through Circular No. 01/2024 dated January 11, 2024, has provided clarification and guidelines for filing appeals in the absence of the GST Appellate Tribunal.

Sub-section (1) of Section 112 of the CGST/SGST Act stipulates that any person aggrieved by an order passed against him under section 107 or 108 of the Act may file an appeal to the Appellate Tribunal against such order within three months from the date on which the order sought to be appealed against is communicated to him. However, as the constitution of the GST Appellate Tribunals is yet to be finalized, the filing of appeals or applications within the specified time limit in the said Section poses difficulties. To address this issue, the Government, through Notification S.R.O. No. 1024/2019 dated 31.12.2019 [Kerala State Goods and Services Tax (Eleventh Removal of Difficulties) Order 2019], clarified that, for calculating the “three months from the date on which the order sought to be appealed against is communicated to the person preferring the appeal” in sub-section (1) of section 112, the start of the three-month period shall be considered as the later of the following dates:-

(i) date of communication of the order; or

(ii) the date on which the President of the Appellate Tribunal, after its constitution under section 109, enters office.

Thus, currently, the time limit specified to make an application to the appellate tribunal is counted from the date on which the President or the State President enters office.

However, concerns have been raised by taxpayers about the initiation of the recovery process by the Department in cases where the decision in the appeal filed before the first appellate authority is against the taxpayers, even though the taxpayer intends to file an appeal against the order of the first appellate authority before the Appellate Tribunal. Additionally, it has been observed that the appellate process is being kept pending by several Appellate Authorities due to the non-constitution of the Appellate Tribunal, treating it as if no remedy is available against their Appellate Orders.

Upon careful examination of the matter, and to provide clarity and ensure consistency in the implementation of the provisions of the law across field formations, the undersigned, in exercise of the powers conferred under section 168 of the KSGST Act, issues the following clarifications and guidelines:

The appeal against the order issued by the first Appellate Authority under Section 107 of the Kerala SGST Act is directed to the Appellate Tribunal, as per the provisions outlined in Section 112(1) of the Kerala SGST Act. The relevant excerpt is as follows:

“Any person aggrieved by an order passed against him under section 107 or section 108 of this Act or the Central Goods and Services Tax Act may appeal to the Appellate Tribunal against such order within three months from the date on which the order sought to be appealed against is communicated to the person preferring the appeal.”

Given the circumstances where the Appellate Tribunal has not been operational, a clarification has been provided to address the challenge of adhering to the aforementioned provision. It has been clarified that the appeal to the Appellate Tribunal can be submitted within three months (six months in the case of appeals by the Government) from the date of communication of the order or the date on which the President of the Appellate Tribunal, after its constitution under section 109, assumes office, whichever is later.

Therefore, the current time limit for filing an application with the Appellate Tribunal is reckoned from the date on which the President of the Appellate Tribunal takes office. It is advised that the Appellate Authorities promptly conclude all pending appeals without waiting for the establishment and operation of the Appellate Tribunal.

Concerning the recovery of arrears, post the resolution of the appeal under Section 107, if any demand arises as a consequence of the Appellate Authority’s order, the taxpayer is required to submit a declaration in Annexure-I to the DC/AC/STO of the arrear recovery wing of the district. This declaration should state the intention to file an appeal under Section 112(1) of the Kerala SGST Act against the Appellate Authority’s order.

Joint Commissioners of Taxpayer Services vertical are tasked with disseminating these guidelines promptly to taxpayers within their respective districts. Any challenges in implementing this Circular should be brought to the attention of the office of the Commissioner of State Tax, Kerala.

This circular is effective until the date when the President of the Appellate Tribunal assumes office.

Source: Circular-1-2024-signed-copy