Since the appearance of GST Laws, trade and industry have confronted diverse issues relating to uploading of returns, benefiting heritage Cenvat credit under TRAN-1 form, different confusions in regards to the making of e-way bill and numerous other such little issues.

When the Government presented the Advance Ruling Authority under GST, it looked to give a lot more extensive inclusion when compared with the prior Excise and Service Tax Regime, so as to give an early goals of the potential tax dispute originating from the trade and industry. First time for any Tax Legislation, an intrigue mechanism was given against the orders passed by the Advance Ruling Authority which was missing under the prior laws and furthermore under the current Income Tax Act.

This appreciated step by the Govt was met with welcoming help from the trade and industry and accordingly, a large number of applications were filed before the Advance Ruling Authority looking for explanation on a variety of tax issues. Shockingly, the Advance Ruling Authorities of different states had not just thought of conflicting decisions on a similar subject yet in addition the greater part of the decisions were ruled for the revenue only. Further, the candidates rarely got any help before the Appellate Authority of Advance Ruling as well.

Presumably, the constitution of this forum, which comprises just of revenue officials and not having a free judicial member is probably the main motivation for this outcome. So, rather than getting help, the trade and industry began confronting this one of a kind challenge.

This circumstance was additionally worsen by the ongoing order passed by the Bombay High Court on account of JSW Energy Limited wherein it has been held that no request can be filed against an order of the Appellate Authority of Advance Rulings on “merits” since no request has been given under the GST Act. Without going into the value of this judgment, which appears to have ignored the well-settled suggestion of law that a writ request is for sure maintainable before the High Court, the request for the High Court has unquestionably made chaos in the Industry.

 

Seeing this pattern, solid perception in the Trade and Industry is getting build about why one ought to try and approach the Advance Ruling Authority who is probably going to choose the issue against the assessee and when practically there is no intrigue mechanism against the said request. While if the assessee picks the course of the settling, the entryways of the tribunal just as the courts would consistently be available to get relief. Given this, it gives the idea that the entire goal of making this forum to give fast goals of issues, rather than experiencing the long-drawn litigation way, is getting crushed.

Subsequently, it was a veritable wish and request of the industry that the Government should get some change in the structure and offer life to this forum. Valuing the need of the industry, the recently chosen government in this Budget attempted to address this issue by presenting the National Appellate Tribunal for Advance Ruling (NATAR) under Section 101A of the CGST Act, 2017. The proposed NATAR will be directed upon by a resigned Judge of the Supreme Court or any High Court and would be joined by two specialized members speaking to both the central and the state government.

The creation of the NATAR seems to understand the issue of departmental bias, by presenting a judicial member and furthermore presenting an alternative of request against orders of the Appellate Authority which was already missing under the GST Laws. However, the wording of proposed Section 101B of CGST Act recommends that an appeal before NATAR would lie just in situations where the perspectives taken either by the individuals of Appellate Authority of Advance Ruling comprised in a same state or in other states are contradictory.

In spite of the fact that this new proposal by the Government appears to give alleviation in certain viewpoints for example at the point when there are opposing views from either of the individuals from a similar Bench or among the co-ordinate Benches of other states. Also, there is no relief given against the request for the AAAR if the decision conflicts with the assessee. In this way, the NATAR would have a constrained utility and this takes the taxpayer back to the beginning.

According to the pattern of the Advance Authority Rulings so far, it has been seen that two co-ordinate seats of the Appellate Authority seldom contrast in their views with regards to a single issue. Thus, a circumstance wherein the individuals from the same seat of the Appellate Authority (who are both departmental officials) contrast in their opinions, is also uncommon. Subsequently, the NATAR will be constrained to addressing to rare circumstances wherein clashing views have been taken by at least two Appellate Authorities (of various states) or two members from the same Appellate Authority Bench. In this manner, in spite of the presentation of NATAR, viably there is still no appellate forum accessible to the assessee having an unfavorable order of the AAAR.

This issue may be solved if the NATAR is given more extensive powers to settle on “any” order passed by the Appellate Authority. Subsequently while passing the Bill, the Government should roll out appropriate improvements in the Bill to give the eagerly awaited relief to the Industry.

In summation, the presentation of the NATAR by the government just tackles the issue of the assessee on surface. In any case, the main problem of having a solid appellate remedy against the orders of the AAR still escapes the taxpayers.

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