APRIL 17, 2019

By Vijay Kumar

AAR-Commissioner should approve written submissions:

The Maharashtra Authority for Advance Ruling has issued an internal Circular stating:

In exercise of the powers conferred under the section 106 of CGST ACT and SGST ACT 2017, the authority, prescribes the following procedure with respect to written submission and attendance by jurisdictional officer/ Concerned officer:

1) Written submissions made by the concerned Officer/jurisdictional officer shall be approved by the jurisdictional Commissioner of Central Tax in case of CGST and Joint Commissioner of State Tax in case of SGST.

2) It is also prescribed that an officer, not below the rank of Superintendent of CGST/Assistant Commissioner of State Tax shall attend hearings before the authority.

The Authority for Advance Ruling (aka AAR) consists of two Joint Commissioner/Additional Commissioner level officers, one from the Central Government and the other from the State.

This Circular raises several doubts.

1. Can the authority issue such a circular in exercise of the powers conferred under section 106 of CGST ACT?

This Section only states that "The Authority or the Appellate Authority shall, subject to the provisions of this Chapter, have power to regulate its own procedure." Does the power to regulate its own procedure include the power to decide as to who should approve the written submissions or who should attend hearings? If they make the Commissioner to approve the written submissions, can they in a later order make it mandatory that the submissions are to be approved by the Chairman of the Board or the Revenue Secretary? And why Commissioner for CGST and Joint Commissioner for SGST? Is it because there is only one Commissioner for SGST, while there are several for CGST?

2. Can the Authority prescribe that an officer, not below the rank of Superintendent of CGST/Assistant Commissioner of State Tax shall attend hearings before the authority?

Is it, first of all, mandatory that somebody SHALL attend hearings? Can't they choose to abstain from hearing? And what will the Authority do if the Superintendent or higher officer does not attend? Has the Authority the authority to prescribe the rank of the officer appearing before it? Next thing, they will prescribe that the Superintendent will have to attend in uniform. I have seen Inspectors appearing before the Settlement Commission consisting of Chief Commissioners. What is wrong if any lower officer is sent to advance the Department's case? In any case, it is for the Department to decide as to who should defend it. And can a set of two Additional Commissioners direct the Commissioner to send a certain level of officer to appear before them? And why a Superintendent of CGST and an Assistant Commissioner of SGST? There are ten times more superintendents in CGST than Assistant Commissioners in SGST.

3. And who is the concerned officer?

As far as I understand it, a concerned officer is a worried officer. Long ago English teachers used to teach that when 'concerned' precedes the noun it qualifies, it means 'worried, anxious, or troubled', but when 'concerned' follows the noun it qualifies, it means 'involved or implicated'. Most probably, the AAR meant the officer concerned and not the concerned officer. When you say, "a responsible officer would have responded" and "the officer responsible for responding", maybe you are referring to two different kinds of officers. But as you know, all officers are concerned, so are the taxpayers - they all are.

While directing the Commissioners to approve the written submissions and to send = (greater than or equal to) Superintendents for hearings, the AAR has been extremely submissive and polite. It has addressed the Commissioner as 'Hon'ble Commissioner'. Commissioners are certainly honourable, they all are. The Hon'ble AAR agrees.

GST/ARA/Maharashtra State/2018-19/B 49 Mumbai, Internal circular ARA No. 01/2019, dated 03.04.2019

The Concerned GST: The concern of the 'officer concerned' or 'concerned officer' is not limited to the AAR but is a widespread malady. And the GST Act itself is a classic example. If you thought that a "concerned supplier" is one who is worried about his business or afraid of a GST raid, the GST Act in Section 52 defines it as:

For the purposes of this section, the expression "concerned supplier" shall mean the supplier of goods or services or both making supplies through the operator.

So, he is not really a scared supplier.

The provisions regarding AAR itself is full of concern, as the following sections would reveal:

98. (1) On receipt of an application, the Authority shall cause a copy thereof to be forwarded to the concerned officer and, if necessary, call upon him to furnish the relevant records:

Provided that where any records have been called for by the Authority in any case, such records shall, as soon as possible, be returned to the said concerned officer.

(2) The Authority may, after examining the application and the records called for and after hearing the applicant or his authorised representative and the concerned officer or his authorised representative, by order, either admit or reject the application:

(3) A copy of every order made under sub-section (2) shall be sent to the applicant and to the concerned officer.

(4) Where an application is admitted under sub-section (2), the Authority shall, after examining such further material as may be placed before it by the applicant or obtained by the Authority and after providing an opportunity of being heard to the applicant or his authorised representative as well as to the concerned officer or his authorised representative, pronounce its advance ruling on the question specified in the application.

(7) A copy of the advance ruling pronounced by the Authority duly signed by the members and certified in such manner as may be prescribed shall be sent to the applicant, the concerned officer and the jurisdictional officer after such pronouncement.

In all these provisions of the Act passed by Parliament, it is the officer who is worried; he is certainly concerned, but he is not a concerned officer.

The concern in Advance Ruling continues in Sections 100 through 104:

100. (1) The concerned officer, the jurisdictional officer or an applicant aggrieved by any advance ruling pronounced under sub-section (4) of section 98, may appeal to the Appellate Authority.

(2) Every appeal under this section shall be filed within a period of thirty days from the date on which the ruling sought to be appealed against is communicated to the concerned officer, the jurisdictional officer and the applicant:

(4) A copy of the advance ruling pronounced by the Appellate Authority duly signed by the Members and certified in such manner as may be prescribed shall be sent to the applicant, the concerned officer, the jurisdictional officer and to the Authority after such pronouncement.

102. The Authority or the Appellate Authority may amend any order passed by it under section 98 or section 101, so as to rectify any error apparent on the face of the record, if such error is noticed by the Authority or the Appellate Authority on its own accord, or is brought to its notice by the concerned officer, the jurisdictional officer, the applicant or the appellant within a period of six months from the date of the order:

103. (1) The advance ruling pronounced by the Authority or the Appellate Authority under this Chapter shall be binding only-

(a) on the applicant who had sought it in respect of any matter referred to in sub-section (2) of section 97 for advance ruling;

(b) on the concerned officer or the jurisdictional officer in respect of the applicant.

104 (2) A copy of the order made under sub-section (1) shall be sent to the applicant, the concerned officer and the jurisdictional officer.

The concern is visible in several other sections.

52 (8) The details of supplies furnished by every operator under sub-section (4) shall be matched with the corresponding details of outward supplies furnished by the concerned supplier registered under this Act in such manner and within such time as may be prescribed.

52 (11) The concerned supplier, in whose output tax liability any amount has been added under sub-section (10), shall pay the tax payable in respect of such supply along with interest, at the rate specified under sub-section (1) of section 50 on the amount so added from the date such tax was due till the date of its payment.

Remember the definition of concerned supplier?

109 (6) The Government shall, by notification, specify for each State or Union territory, a Bench of the Appellate Tribunal (hereafter in this Chapter, referred to as "State Bench") for exercising the powers of the Appellate Tribunal within the concerned State or Union territory:

110(1) (d) a Technical Member (State) unless he is or has been an officer of the State Government not below the rank of Additional Commissioner of Value Added Tax or the State goods and services tax or such rank as may be notified by the concerned State Government on the recommendations of the Council with at least three years of experience in the administration of an existing law or the State Goods and Services Tax Act or in the field of finance and taxation.

If the State Government is not concerned, who is?

110 (14) (b) the Judicial Member or Technical Member (State) of the State Bench or Area Benches shall not be removed from their office except by an order made by the State Government on the ground of proved misbehaviour or incapacity after an inquiry made by a Judge of the concerned High Court nominated by the Chief Justice of the concerned High Court on a reference made to him by the State Government and of which the said Member had been given an opportunity of being heard.

When laws are written like this, the High Courts have to be concerned.

116(2) (e) any person who has been authorised to act as a goods and services tax practitioner on behalf of the concerned registered person.

If there is a concerned person, there is always a practitioner, not necessarily concerned.

151. (2) Upon such notification being issued, the Commissioner, or any person authorised by him in this behalf, may call upon the concerned persons to furnish such information or returns, in such form and manner as may be prescribed, relating to any matter in respect of which statistics is to be collected.

152. (1) No information of any individual return or part thereof with respect to any matter given for the purposes of section 150 or section 151 shall, without the previous consent in writing of the concerned person or his authorised representative, be published in such manner so as to enable such particulars to be identified as referring to a particular person and no such information shall be used for the purpose of any proceedings under this Act.

169. (1) (f) if none of the modes aforesaid is practicable, by affixing it in some conspicuous place at his last known place of business or residence and if such mode is not practicable for any reason, then by affixing a copy thereof on the notice board of the office of the concerned officer or authority who or which passed such decision or order or issued such summons or notice.

Maybe they knew well that if you deal with GST, you are a concerned person. But do you a find a scared officer affixing a copy of a notice on his notice board, because the concerned assessee could not be found?

It is not as if they did not know about the existence of a "person concerned"; they thought he is the same 'concerned person'. In these sections, we find the correct usage of 'concerned'. Maybe these sections were written by another concerned bureaucrat who learnt his grammar in school.

38 (3) The details of supplies modified, deleted or included by the recipient and furnished under sub-section (2) shall be communicated to the supplier concerned in such manner and within such time as may be prescribed.

38 (4) The details of supplies modified, deleted or included by the recipient in the return furnished under sub-section (2) or sub-section (4) of section 39 shall be communicated to the supplier concerned in such manner and within such time as may be prescribed

54 [Explanation 2(a)(iii)] if the goods are exported by post, the date of despatch of goods by the Post Office concerned to a place outside India;

108. (1) Subject to the provisions of section 121 and any rules made thereunder, the Revisional Authority may, on his own motion, or upon information received by him or on request from the Commissioner of State tax, or the Commissioner of Union territory tax, call for and examine the record of any proceedings, and if he considers that any decision or order passed under this Act or under the State Goods and Services Tax Act or the Union Territory Goods and Services Tax Act by any officer subordinate to him is erroneous in so far as it is prejudicial to the interest of revenue and is illegal or improper or has not taken into account certain material facts, whether available at the time of issuance of the said order or not or in consequence of an observation by the Comptroller and Auditor General of India, he may, if necessary, stay the operation of such decision or order for such period as he deems fit and after giving the person concerned an opportunity of being heard and after making such further inquiry as may be necessary, pass such order, as he thinks just and proper, including enhancing or modifying or annulling the said decision or order.

111 (3) Any order made by the Appellate Tribunal may be enforced by it in the same manner as if it were a decree made by a court in a suit pending therein, and it shall be lawful for the Appellate Tribunal to send for execution of its orders to the court within the local limits of whose jurisdiction,- (a) in the case of an order against a company, the registered office of the company is situated; or (b) in the case of an order against any other person, the person concerned voluntarily resides or carries on business or personally works for gain

129 (4) No tax, interest or penalty shall be determined under sub-section (3) without giving the person concerned an opportunity of being heard.

Nearly three years ago, I suggested to the GST Council to hire just one English Teacher to work with all the brilliant bureaucrats and experts running the GST Show.

On that lingering doubts whether the defined 'concerned supplier' is different from the undefined 'supplier concerned' and when the law permits the authorised representative of the concerned officer to be heard, can the AAR prescribe the rank of that representative?

Until next week…