JANUARY 14, 2023

By B N Gururaj, Advocate

GST is a totally technology driven tax system. A lot of data is uploaded by both the taxpayers and the GST officers - more by the taxpayers than by the GST officers. Now that the GST portal is in existence, albeit with many bloopers, for over five years, one would expect that the people and the System are comfortable with each other.

Recently, by Notification No. 26/2022-CT, dated 26.12.2022, Rule 109 of the CGST Rules, 2017 has been substituted. Brief scheme of the substituted Rule is this:

"Section 107(2) of the CGST Act 2017 provides that when the jurisdictional Commissioner decides that an appeal should be filed against an order passed an adjudicating authority, he can direct any officer subordinate to him to file an application before the appellate authority. This application should be filed in Form GST APL-03, which shall be disposed of as an appeal by the appellate authority. Upon filing of application, an acknowledgment shall be issued by the office of the appellate authority in Form GST APL-02. Where the order appealed against is already uploaded on the Portal, a final acknowledgment is issued. Where the order is not uploaded on the Portal, the appellant (the Revenue, in this case) shall submit a self-certified copy within seven days of filing the application. Then a final acknowledgment shall be issued. In case of delay in submitting the self-certified copy, the date of submission of the self-certified copy shall be treated as the date of filing of appeal (application?)"

Rule 142(5) of the CGST Rules, 2017 directs uploading

"A summary of the order issued under section 52 or section 62 or section 63 or section 64 or section 73 or section 74 or section 75 or section 76 or section 122 or section 123 or section 124 or section 125 or section 127 or section 129 or section 130 shall be uploaded electronically in FORM GST DRC-07, specifying therein the amount of tax, interest and penalty, as the case may be, payable by the person concerned."

The rule enjoins uploading the summary of the orders passed under various provisions of the Act referred to therein. So, the order itself need not be uploaded on the Common Portal. Incidentally, Rule 100 also speaks of passing assessment orders under certain specified circumstances and uploading of "summary thereof" in Form GST DRC-07.

The substituted Rule 109 is in error when it speaks of "where the order is uploaded…" or "where the order is not uploaded…". Aforesaid provisions require uploading of only a summary of the order, not the order itself.

Be that as it may, the larger question is that this rule deals with an application before the first appellate authority, filed at the instance of the jurisdictional Commissioner who is superior to all the officers who pass adjudication orders in his/her Commissionerate. When the highest officer in the Commissionerate decides that an appeal should be filed against a given adjudication order, presumably he finds that sometimes, the adjudication orders are uploaded on the Common Portal. Sometimes, they are not uploaded! So, the officer authorised by the highest officer in the Commissionerate to file the application under Section107(2) has to submit a self-certified copy of the order appealed against. Doesn't this situation seem strange?

Often, the assessees face difficulties in claiming refund (arising from an order) or filing the appeal when the uploading of the order is not done by the officer passing the order. I have come across a case where the appellant had pre-deposited in cash using Form PMT-06. But that would not complete the step of making pre-deposit, as any deposit made through PMT-06 will sit in the Electronic Cash Ledger. How to complete the deposit? An officer suggested to generate Form DRC - 03. When the appellant tried to generate DRC - 03, he was unable to proceed further as DRC-07 had not been uploaded!

Thus, while the Revenue expects the obedient assessees to upload varieties of documents and minimum two complex returns every month, its officers cannot upload an order passed by them, or even its summary. There does not seem to be any accountability for not discharging this function enjoined by law. The implicitly disturbing feature of substituted Rule 109 is that even the Central Government ¹ finds it easier to change the law itself to provide for acceptance of self-certified copy of an order. But it cannot administratively control its adjudicating authorities to upload the orders or their summary on the Common Portal.

Need one say more about the extent of accountability in the GST Departments?

[The views expressed are strictly personal.]

¹ And the State governments too which are bound to make identical amendment to the State GST Rules.