1
APPEAL MANUAL
2 Sr. No. 1 2 3 4 5 6 7 8 9 10 11 12 13
INDEX Subject Index Objects Functions of Appeal Organisational Chart of Appeals The relevant provisions of Act, Rules, Notification and Internal Circular. Targets (Financial Targets and Physical Targets) The Process in Brief Procedure in Appeal Branch Function Chart Reporting formats of the Branch Various control registers for the branch and formats of the same Inspection procedure and frequency Comment on record filing system Responsibility and date for updating the manual
Page No. 2 3 4 5 to 10 11 12 13 to 19 20 to 23 24 24 24 24 24
3 2. OBJECTS /FUNCTIONS OF APPEAL 2.1 To pass appeal orders where appeal is preferred by aggrieved persons against orders passed under the provisions of the Act. 2.2 To provide the procedures which shall govern the right to appeal which is a statutory appeal? 2.3 To remedy any lacunae which may have occurred in the orders against which appeal is preferred.
4 3.1 ORGANISATIONAL CHART OF APPEALS
Commissioner
Additional Commissioner(Reg)
JC(Reg )
JC (Appeals) Mumbai -4 posts
DC (Registration)
JC(Appeals ) Mofussil -5 posts
DC( Appeals ) – (Mumbai- posts 7)
Additional Commissioner(BST)
JC (Adm) of the respective divisions
DC(Appeals ) (Moffusilposts -12)
3.2 Hierarchy in appeals Sr.No. 1. 2.
3.
Order passed by
Appellate authority Sales Tax Officer/AssistantDy.Commissioner Commissioner of Sales Tax. of SalesTax. Dy. Commissioner of Sales Tax orJoint Commissioner Senior Dy. Commissioner of Salesof Sales Tax. Tax. J.C. or Addl. Commissioner ofMaharashtra State Sales Tax or Commissioner ofSales Tax Tribunal Sales Tax.
Orders passed in Appellate appeal* authority J.C. or Addl.Maharashtra State Commissioner ofSales Tax Tribunal Sales Tax or Commissioner of Sales Tax.
5 * Order passed in appeal is appealable only to the Tribunal.
4. THE RELEVANT PROVISIONS OF ACT, RULES, NOTIFICATION AND INTERNAL CIRCULAR. 4.1 Section 25, 26,section 79,80,81 and section 85 deal with appeals. 26.
Appeals –
(1) An appeal, from every order, not being an order mentioned in sub-section (2) of this section and sub-section (2) of section 85 passed under this Act or rules or notifications, shall lie if the order is made,—
(a) by a Sales Tax Officer or an Assistant Commissioner, or any other officer sub-ordinate thereto, to the Deputy Commissioner;
(b) by a Deputy Commissioner or Senior Deputy Commissioner, to the Joint Commissioner; (c) by a Joint Commissioner, Additional Commissioner or the Commissioner, to the Tribunal. (2) In the case of an order passed in appeal by a Deputy Commissioner or a Joint Commissioner, a second appeal shall lie to the Tribunal.
(3)Every order passed in appeal by the Tribunal under this section. shall, subject to the provisions of sections 24 and 27, be final and every order passed in appeal by any other appellate authority, shall, subject to the provisions of sections 24, 25 and 27 be final.
(4)Subject to the provisions of sections 80 and 81, no appeal including a second appeal shall be entertained unless it is filed within sixty days from the date of the communication of the order appealed against.
(5)Subject to such rules of procedure as may be prescribed, every appellate authority (both in the first appeal and the second appeal) shall have the following powers, namely :—
(a) in an appeal against an order of assessment, it may confirm, reduce, enhance or annul the assessment:
Provided that, where the appeal is filed before the Tribunal, the Tribunal may set aside the assessment and refer the case back to the assessing authority for making a fresh assessment in accordance with the direction given by it and after making such further inquiry as may be necessary; the assessing authority shall thereupon proceed to make such fresh assessment and determine, where necessary, the amount of tax payable on the basis of such fresh assessment;
(b) in an appeal against an order imposing a penalty, the appellate authority may confirm or cancel such order or modify it in accordance with the provisions of this Act;
(c) in an appeal against an order levying interest, the appellate authority may confirm or cancel such order or modify it in accordance with the provisions of this Act;
(d) in any other case, the appellate authority may pass such order in the appeal as it deems just and proper:
Provided that, the appellate authority shall not enhance an assessment or a penalty or interest or sum forfeited or reduce the amount of set-off or refund of the tax, unless the appellant has been given a reasonable opportunity of showing cause against such enhancement or reduction. Explanation. — While disposing of an appeal, the appellate authority may consider and decide any matter arising out of the proceedings in which the order appealed against was passed, notwithstanding that such matter was not raised before it by the
6 appellant or that no order was made in the said proceedings regarding such matter.
(6)The Appellate authority or the Tribunal, as the ease may be, may, while admitting the appeal,
pending the disposal of the appeal, stay the order appealed against in full or part, subject to such conditions or restrictions as it may deem necessary including a direction for depositing of a part or whole of the disputed amount by the appellant.
(7)Every appellate authority, including the Tribunal, in so far as it may, shall decide the appeals pending before it by such priorities as may be prescribed.
Provided that, if a person has attained the age of seventy-five years or more and such person is the proprietor of the business, a partner in a firm or a director having substantial interest in a company being a body corporate, then on an application in the prescribed form made by him in this regard, any appeal made by the proprietary concern, partnership firm or the company shall be decided on priority to the exclusion of all other appeals. Powers of Appellate Authority to Review order U/s 25(2)(c ) 25.
Review –
(1) After any order including an order under this section or any order in appeal, is passed under this Act, rules or notifications, by any officer or person sub-ordinate to him, the Commissioner may, of his own motion, or upon information received by him, call for the record of such order and examine whether,--
(a) any turnover of sales or purchases has not been brought to tax or has been brought to tax at lower rate, or has been incorrectly classified, any claim is incorrectly granted or that the liability to tax is understated, or
(b) in any case, the order is erroneous, in so for as it is prejudicial to the interests of revenue, and after examination may by serving on the dealer a notice in the prescribed form , pass an order to the best of his judgment, where necessary, (2) (i) For the purpose of the examination and passing of the order, the Commissioner may require by service of notice in the prescribed form, the dealer to produce or cause to be produced before him such books of accounts and other documents or evidence which he thinks necessary for the purposes aforesaid. (ii) No order under this section shall be passed after the expiry of five years from the end of the year in which the order passed by the sub-ordinate officer has been served on the dealer.
(ii) Where in respect of any order or part of the said order passed by the sub-ordinate officer,
an order has been passed by any appellate authority including the Tribunal, or such order is pending for decision in appeal, or an appeal is filed then whether or not the issues involved in the examination have been decided or raised in appeal, the Commissioner may within five years of the end of the year in which the said order passed by the subordinate officer has been served on the dealer, make a report to the said appellate authority including the Tribunal regarding his examination or the report or the information received by him and the said appellate authority including the Tribunal shall thereupon, after giving the dealer a reasonable opportunity of being heard, pass an order to the best of its judgment, where necessary . For the purposes of section 26, such order shall be deemed to be an order passed in appeal.
79. Fee on appeal and certain other applications – Notwithstanding anything contained in the Bombay Court-fees Act, I959-
(a) any application not otherwise provided for when presented to a prescribed authority
for a prescribed purpose or when presented to the Tribunal shall subject to the provisions of clause (h), he charged with such fee not exceeding one hundred rupees, as may be prescribed and
7 (b) An appeal preferred under section 26 shall be charged with such fee, not exceeding
one thousand rupees, as may be prescribed, if the amount in dispute exceeds rupees one lakh, and any other appeal shall be charged with such fee not exceeding one hundred rupees, as may be prescribed.
80. Application of sections 4 and 12 of Limitation Act – In computing the period of limitation laid down under sections 25, 26 and 27, the provisions of sections 4 and 12 of the Limitation Act, 1963 shall, so far as may he, apply 81. Extension of period of limitation in certain cases – (1) An appellate authority may admit any appeal under section 26 after the period of limitation laid down in the said section, if the appellant satisfies the appellate authority that he had sufficient cause for not preferring the appeal within such period. Explanation.—For the purposes of this section, when an appeal is preferred under section 26 after the period of limitation laid down in that section, the ground that the appellant came to know of any judgment, decision or order of any Court, Tribunal or other authority after the expiry of the period of limitation aforesaid (whether such judgment, decision or order was delivered or made before or after the expiry of that period). shall not be deemed to constitute a sufficient cause for the purposes of this section. (2) In computing the period of limitation, in respect of any proceedings under this Act, the time during which the proceedings remained stayed under the order of a competent Court or Tribunal shall be excluded. 85. Bar to certain proceedings – (Non-Appellable Orders) (1) Save as is provided by section 27, no order passed or proceedings taken under this Act, the rules or notification by any authority appointed or constituted under this Act, shall be called in question in any Court, and save as is provided by section 26, (………)no appeal shall lie against any such order. (2) No appeal shall lie against,— (a) any notice issued under this Act, rules or notifications, or (b) any summons issued under sub-section (1) of section 14, or a defect notice issued under section 20 (b-1) an assessment order passed under sub-section (1) of section 23 or (c) any order issued on an application for instalment, or (d) any order or notice issued under sub-section (1) or (2) of section 34 (e) an order pertaining to the seizure or retention of books of accounts, registers and other documents, or (f) (…) (g) any order or assignment under section 59, or (h)……. (i) an interim order issued in the course of any proceeding not being an order issued under subsection (6) of section 26.
4.2 Rules 31 to Rule 37, and rules 73,75 and 76 deal with appeals. 31. Submission of appeals (1) Every first or second appeal shall be in writing, specify the name and address of the appellant, specify the date of the order against which it is made,
8 contain a clear statement of fact, state precisely and in brief the relief prayed for, and be accompanied by the challan for proof of having paid the required fees. state the quantum of relief sought . be signed and verified by the appellant or by an agent duly authorised by him in writing in that behalf, in the following form, namely :"I ....... agent appointed by the appellant named in the above memorandum of appeal do hereby declare that what is stated herein is true to the best of my knowledge and belief. ------------------(Signature)". (2) The memorandum of appeal shall be accompanied by either the certified copy of the order supplied to the dealer or duly authenticated copy thereof, unless the omission to produce such order or copy is explained at the time of the presentation of the appeal to the satisfaction of the appellate authority. (3) The memorandum of appeal shall either be presented by the appellant or his agent to the appellate authority or be sent to the said authority by registered post. (4) The appeal including a second appeal shall be made in Form 310. 32. Application For Stay Any appellant desiring to obtain stay in full or in part to the operation of the order, disputed in appeal, may make an application in Form 311 for grant of such stay, to the appellate authority. 33. Stay order – Stay order under section 26 shall be in Form 312. 34. Application for disposal of appeal – The application by Senior citizen for the disposal of appeal on priority under sub-section (7) of section 26 shall be made in Form 313. 35. Summary rejection – (1) If the memorandum of appeal omits to state any of the particulars required under rule 31 or is not accompanied with the certified copy of the order supplied to the dealer or a duly authenticated copy thereof, the appeal may be summarily rejected : Provided that, no appeal shall be summarily rejected under this sub-rule unless the appellant is given a reasonable opportunity to amend the memorandum of appeal. (2) The appeal may also be summarily rejected on grounds other than those specified in sub-rule (1), which the appellate authority may consider sufficient and which shall be reduced to writing by the appellate authority : Provided that, before an order summarily rejecting an appeal under this sub-rule is passed, the appellant shall be given a reasonable opportunity of being heard. (3) If within thirty days from the date on which any appeal is summarily rejected under sub-rule (1) or (2), the appellant makes an application to the appellate authority for setting aside the order of summary rejection and satisfies it that the notice under the proviso to sub-rule (1) to amend the memorandum of appeal or of a hearing under the proviso to sub-rule (2) was not duly served on him, or that he was prevented by sufficient cause from amending the memorandum of appeal or from appearing when the appeal was called on for hearing, the said authority shall make an order setting aside the summary rejection and restore the appeal to its file: Provided that, if an order on the application for setting aside the order of summary rejection is not made within thirty days of the receipt of the application, it shall be deemed that the appeal is restored to the file of the appellate authority. 36. Hearing(1) (a) If the appellate authority does not summarily reject the appeal, it shall fix a date for hearing. The date so fixed shall not be earlier than ten days from the date on which intimation
9 thereof is given to the appellant or to his agent: Provided that, a date earlier than aforesaid may be fixed for hearing, if the appellant or his agent agrees thereto in writing. (b) The authority aforesaid may for sufficient reasons adjourn at any stage the hearing of an appeal to a different time on the same day or any other day so however that the day to which the hearing is adjourned shall not be earlier than ten days from the day on which intimation thereof is given to the appellant or to his agent: Provided that, a date earlier than aforesaid may be fixed for hearing an appeal if the appellant or his agent agrees thereto in writing. (2) If on the date and at the time fixed for hearing or on any other date or at any other time to which the hearing may be adjourned, the appellant does not appear before the said authority either in person or through an agent, the said authority may dismiss the appeal or may decide it ex-parte, as it may think fit: Provided that, if within thirty days from the date on which the appeal was dismissed or decided ex-parte, under this sub-rule, the appellant makes an application to the appellate authority for setting aside the order and satisfies it that the intimation of the date of hearing was not duly served on him or that he was prevented by sufficient cause from appearing when the appeal was called for hearing the said authority shall make an order setting aside the dismissal or ex-parte decision upon such terms as it thinks fit, and shall appoint a day for proceeding with the appeal. (2)
(a) Every appellate authority including the Tribunal shall maintain registers showing the particulars regarding the chronological order of the filing of appeals and also the quantum of relief sought.
(b) For the purposes of these rules, the expression “quantum of relief sought” means:-the aggregate of the amount of tax or penalty or interest, if any or sum forfeited or demanded and the amount claimed by the appellant as refundable, or (ii)
the difference between the amount of refund claimed by the appellant and the amount of refund granted in the order against which the appeal is filed, or
(iii)
the difference of the amount of tax or penalty or interest, if any, or sum forfeited, demanded and the amount accepted by the appellant to be payable.
(4) Every appellate authority including the Tribunal shall fix dates for hearing in such a way that half of the cases fixed for hearing during any month are the cases where appeals, if any, are filed against any order passed under section 56 or where appeals are filed earlier to all other appeals and the remaining half shall be out of the balance appeals involving the highest quantum of relief sought. 37. Supply of copy of order to the appellant and to the officer concerned – A certified copy of any order passed in appeal shall be supplied free of cost to the person or dealer concerned and another copy shall be sent to the officer against whose order the appeal is filed. 73. Fees. – ( Only the relevant parts are reproduced) (1) ………………………. (2) (a) All fees payable under this rule shall be paid in the manner in which tax is to be paid under rule 45. (b) The amount of fees indicated in column (3) of the Table below against the memorandum of appeal or the respective application specified in column 2 thereof shall be payable when such memorandum is presented or application is made.
Provided that, fees specified in column (3) of the table below against entries (29), (30) and (31) may be pay by affixing a court fee stamp of such value on the respective application form.
1 TABLE Sr. No. (1) (8) (9) (18)
Description of Memorandum or Application (2) Application for stay under section 26(6) Application by senior citizen for priority disposal of his appeal under section 26(7) Memorandum of appeals under section 26 (a) where the quantum of relief sought is less than rupees one lakh (b) where the quantum of relief sought is rupees one lakh or more
(c) in case of an appeal not covered by (a) and (b) above
(26) (27)
Application for restoration of appeal Application for adjournment or miscellaneous application (28) Application for condonation of delay (29) Authority for person who is a relative or person regularly employed sales Tax Practitioner under section 82 (30) Authority for Legal Practitioner, Chartered Accountant, Cost Accountant or, as the case may be, Sales Tax Practitioner under section 82 75. Form of authority under section 82. –
Amount of fee (3) Rupees Twenty five Nil
One hundred rupees One tenth of a percent. of the amount in dispute subject to a maximum of rupees one thousand One hundred rupees. Rs. five per page One hundred rupees Ten rupees Nil Nil Five rupees Five rupees
The authority of attend before any Sales Tax authority in connection with any proceeding under the Act shall be in Form 708 for the person who is relative or a person regularly employed and in Form 709 for Legal Practitioner, Chartered Accountant, Cost Accountant or, as the case may be, Sales Tax Practitioner entitled to appear before a Sales Tax Authority. 76. Authority of agent to continue.An authority given to an agent shall continue to be valid for the purpose of appearance in any proceedings arising from the proceedings in which such authority is originally filed:
Provided that, a separate authority shall be furnished for appearance in proceedings relating to each period for which a separate order is required to be made or has been made.
4.3 FORMS IN APPEAL Appeal against assessment, interest, Form 310 penalty or fine u/s 26of the MVAT Act, 2002 Application for grant of stay against Form 311
1 order of assessment, penalty of interest or fine u/s 26 of the MVAT Act, 2002. Admission memo-cum-stay order
Form 312
Application by senior citizen for the Form 313 disposal of appeal on priority.
5. TARGETS (FINANCIAL TARGETS AND PHYSICAL TARGETS) 5.1
Dy.Commissioner of Sales Tax (Appeals)-100 P's per month
5.2
Joint Commissioner of Sales Tax (Appeals)-60 P's per month
5.3
The appeals are to be fixed and decided chronologically as per following
criteria subject to limitations as per rule 36(4) a) Priority appeals (Appeals filed by the senior citizens) b) Appeals pending more than 3 years irrespective of dues involved therein c) Appeals wherein the dues are involved more than Rs. 1 lakh (In case of DC(Appeal) and Rs. 10 lakhs (in case of JC Appeals) d) Appeals wherein dues are involved below the limit in © avove e) Appeals other than mentioned above.
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6. THE PROCESS IN BRIEF 6.1
Appeal and stay proceedings are separate proceedings and therefore they
are decided independently. Separate forms are prescribed for filing of appeal and grant of stay. 6.2
The process of appeal begins with the filing of memorandum of appeal in
the prescribed form 310 with all the relevant details. If the dealer desires stay on the amount in dispute then he has to file separate application for stay. 6.3
Stay proceedings are initiated by
filing application in Form 311. The
appellant is called for hearing, after which the part payment is fixed. After the part payment is made, then final stay is granted up to the disposal of appeal.
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7.
PROCEDURE IN APPEAL BRANCH 7.1 Procedure to file appeal a) An appeal has to be filed in the prescribed form 310 duly verified and signed in the prescribed manner as under the Rule. It should be properly filled in and contain statement of facts, grounds of appeal and relief prayed for. Every appeal has to be preferred within 60 days from the date of communication of the order appealed against. The memorandum of appeal has to be presented in person or by an agent duly authorized by the appellant or be registered post as per rule. It should be accompanied by(a) an certified copy or authenticated copy of the order appealed against, (b) proof of payment of prescribed fees. c) The memorandum of appeal shall be entered by the Clerk in the Appeal Register as per Appendix
_____
and it shall be
acknowledged accordingly as per Appendix _____.
7.2 Acquision of Record The relevant record/Assessment record shall be requisitioned from the concerned authority who has passed the order. The entry of requisition of record shall be taken by the clerk in the Requisition Register as per Appendix_____. 7.3 Submission of record to Appellate Authority
1 The Assessment record/relevant record of the order duly paginated and indexed has to be submitted to the Appellate Authority immediately on receipt of requisition by the concerned office. 7.4 Submission of record to J.C.(Legal) When the record is required by the office of Joint Commissioner of Sales Tax (Legal) for submission before the Tribunal it shall be accompanied with Appeal/Revision order. While submitting record the Appeal No, Second Appeal No and year of the Tribunal should invariably be mentioned. 7.5 Stay procedures a) The appellate Authority can decide appeal if no application for stay is filed. Where the Stay application is filed, it should be decided first. The appellate authority may direct stay of operation in part or full of the order appealed against, pending the disposal of appeal, including direction of part of full payment of the disputed dues while deciding the stay application. The appellant can file appeal before the Tribunal against the stay order. The filing of appeal against the stay order will not prevent the Appellate Authority from deciding the appeal. b) The appellate authority should decide amount in dispute and the part payment to be made with due consideration to the grounds of appeal. The amounts which are not in dispute should not be stayed and should be specifically mentioned in the ad-interim, interim and final stay orders as amount available for recovery. •
Ad Interim stay- As soon as stay application is filed the Ad-interim stay should be issued to the amount of disputed dues.
•
Interim stay: After hearing of application of stay the amount of part payment should be fixed. After fixing such amount the interim stay may be issued till the date of payment of such amount fixed.
•
Final stay:
Where dealer makes the part payment of the amount
1 fixed in stay proceedings, the final stay be issued. Where appellant feels aggrieved by the fixation of part payment in stay proceedings, he may file appeal before the Tribunal.
However such
filing of appeal against part payment order shall not prevent Appellate Authority from deciding Appeal. 7.6
Appointment diary
Appointment Diary should be maintained for recording the dates of appointments for Preliminary and Final hearings of appeal notices and reminders. It should be followed as per procedure and manner laid down for maintenance of Appointment Diary in the Chapter on 'Assessment'. 7.7 Scrutiny of memorandum of appeal a. The memorandum of appeal filed has to be scrutinized by the Sales Tax Inspector and necessary report to that effect shall be submitted before the Appellate Authority about completeness of appeal memorandum in all respect. b. In case the appeal memorandum is not found complete or if there is omission or it is not within prescribed time, a Preliminary Hearing Notice as per Appendix _____ has to be issued by the Clerk immediately, allowing ten days time to make good the defect and to hear
for preliminary
hearing on the appointed day. A note of the same has to be taken in Appointment Diary. 7.8
Appearance
The appearance of the Appellant or his authorized representative will be governed as per provisions of Section 82. 7.9 Admission of appeal a) If the appellant fails to remedy the defects in the appeal memo and to explain the delay in filing of appeal to the satisfaction of the Appellate Authority, the appeal shall be summarily rejected.
1 b) Where the appeal memorandum is found in order or where the appellant remedy the defects in appeal memorandum and explains the delay as the case may be to the satisfaction Appellate Authority , it has to be placed for final hearing. 7.10 Priority appeals a) The priority appeals as per provisions of section 26(7) shall be first entered in the Appeal Register and then should be entered in the Register of Priority Appeal as per Appendix ______. b) These appeals has to be fixed for hearing as per chronology of its priority. 7.11 Fixation of date of hearing and time & place a) Subject to the criteria contained in rule 36(4), the Appellate Authority shall fix the appeals for final hearing and inform the place, time and date to the appellant by issue of final hearing notice as per Appendix____. Appellate authority should decide the appeals on priority as per provisions of section 26(7). b) While fixing the place for hearing of appeal in Moffusil Area due regard to be given to the convenience of the appellant. c) The fixation of date of hearing shall not be earlier than ten days unless waived in writing by the appellant or his authorized representative. The adjournments of date of hearing shall also not be earlier than 10 days unless waived in writing by the appellant or his authorized representative. 7.12 Restoration of appeal a. The appellant may file application for restoration against the summary rejection or dismissal of appeal for non-attendance within thirty days. The restoration application has to be entered by the clerk in the Restoration
1 Register as per Appendix_____ and it shall be fixed for hearing as early as possible. b.Utmost care should be taken to decide the applications for restoration against summary rejection order on priority for the reason that if such applications are not decided within 30 days from the date of application, such appeals shall be deemed to be restored. Monthly abstracts of such deemed restorations shall be submitted to superior authorities. c.Where restoration applications are allowed or rejected, the entry thereof has to be taken in the Restoration Register. Where the appeal is restored, it has to be entered in the Appeal Register under New Appeal No. The said appeal should be taken for hearing as laid down in earlier paragraph. 7.13 Disposal of appeal a)
Where the appeal is decided after hearing on merit or otherwise
disposed of ex-parte, the clerk should take entry in the appeal disposal register and cross entry in the Appeal Register accordingly. As far as possible,appeals shall be decided on merit after hearing in order to curtail period litigation from the appellants’ point of view. b) As per sub-section (13) of section 29 of the MVAT Act, the appellate authority can levy penalty, irrespective of the amount and such action is not subject to prior approval as is the case with the non-appellate authorities. c) The relevant record of the order appealed against shall be sent to the concerned authority with the copy of the appeal order. 7.14
Review
The powers of review of the order are delegated to the Appellate Authority u/s 25. Where there is appeal pending before the appellate authority and the appellate authority on his own motion or when it is brought to his notice that wrong deduction of any claim, set off in excess is allowed or tax has been levied at lower rate or interest is not levied or
1 short levied in the order, he may after examination issue notice for review in form ____. The appellate authority is also empowered under Explanation to sub-section(5) of section 26 to decide any matter arising out of the proceedings of the order appealed against even if the matter was not raised before him or no order was passed in the said proceedings regarding such matter. Though there is no statutory period is mentioned in the Act it is suggested that the said notice shall be served as far as possible prior to 10 days in advance of the date of appointment with a view to observe principles of natural justice. The entry of the issue of notice shall be taken in the Audit Register and Appointment Diary. 7.15 Powers of Appellate Authority of Review u/s 25(2)(c ) and Sou Moto powers under explanation to section 26(5) distinguished a) The powers of review are delegated to appellate authority u/s 25(2)(c) of the Act. The appellate authority are also empowered under explanation to sub-section (5) to section 26 to consider and decide any matter arising out of the proceedings of the order appealed against though such matter was not raised in the appeal.
Thus there is difference in the powers of
appellate authority under section 25 and 26. For example, where assessment order is in appeal, the matters which could have been decided at the time of assessment can be considered as a matter arising out of assessment proceedings and such matter can be decided in appeal by the appellate authority.
However where there is any information regarding
concealment of transaction liable to tax, or the concealment of certain facts which come to light after completion of assessment and such information is
de hors the assessment record, then for the purpose of
explanation under section 26 it cannot be considered as matter arising out of the assessment proceeding. Hence such matters being brought by independent report or information from any authority would be very well covered by section 25(2)(c). It can not be considered as a matter arising out of the assessment order under
appeal. The appellate authority
therefore should be very careful while utilizing the powers under these two sections. Where the matter arising out of proceeding of the order under
1 appeal is to be decided it should be under explanation to section 26 and in any other case it should be considered for review order under section 25(2)(c). b)The order of review u/s 25(2)(c)shall be passed while deciding the appeal u/s 26. Such shall be specifically stated by the appellate authority in the preamble of the said order. c) The appellant also can put forth a new ground/claim which was not raised before by him and such grounds/claim can be considered by appellate authority under Explanation to sub-section (5) to section 26. 7.16 Hearing & Passing of order a) Where the dealer or his authorized representative attends in response to said notice with the books of accounts and relevant documents and evidence in his support, the same shall be verified by the STI. He will put his report before the Appellate Authority. The appellate Authority after hearing the appellant /his representative shall pass the appropriate order. b) The order of review shall be passed as far as possible within 15 days from the date of hearing. The order of review has to be passed within five years from the end of the financial year in which the order under review is served. The said review order is appealable before the Tribunal. A certified copy of order shall be served on the dealer. Where there is enhancement of dues in the review order, the certified copy of the order shall be sent to the officer passing the original order. The entry of passing of Review order shall be entered in the Audit Register. On receipt of the said order, the said officer shall enter it in its DBA and issue demand notice. The demand notice with copy of review order shall be served on the dealer. 7.17
Rectification:
a) If there is any mistake or omission in the order which is apparent from the record, the appellate authority may rectify it u/s 24 within two
2 years from the end of the financial year in which the order under rectification is served. The notice for rectification shall be issued in form 306 along with the gist of rectification to be made. It should be served fifteen days in advance from the date of hearing. The Rectification Register shall be maintained for recording the necessary entries as prescribed in the chapter on ‘Assessment”.
b) The procedure shall be the same as outlined for review of order.
7.18 Certified copies of order The procedure laid down in the Chapter ____ on 'Assessment' has to be followed for certified copies of order.
7.19 Scanning of orders After passing appeal order the appeal clerk, shall submit the copies of appeal orders for the respective month to the concerned Reviewing Authority by the end of the next month. Where the appeal records are necessitated by the Reviewing Authority, the same shall be submitted immediately. There shall be maintained Audit Register as per Annexure ____. The Audit objections recorded by the concerned authority shall be entered in the Audit Register. The appellate authority shall comply the audit objection or take corrective action u/s 24 where necessary within a period of two years from the financial year in which the Appeal order is served. The notice for rectification shall be issued in Form 306. Where the matter is covered by section 25, the Review order has to be passed by respective Reviewing Authority. The notice for review shall be in Form 309. The limit for passing the Review order is within the five years from the financial year in which the original order is served. After passing the Review order/corrective orders, and recovery of dues, the entry in the register shall be closed.
2 7.20 Record The file wherein appeal, rectification, review order is passed shall be preserved in the office of appellate authority for a period one year from passing the order. While sending the files to the record section, the entry shall be taken in the register for cases sent to the record.
8. FUNCTION CHART 8.1 Filing of appeal
Clerk: The clerk will receive appeal and issue acknowledgement thereof. He will enter appeal petition in the appeal register and sent requisition to the concerned authority who has passed the order to obtain the relevant record. He will take entry in the register for requisition of record.
8.2 Scrutiny of appeal.
Clerk: If the appeal memo is incomplete or if there is any omission or if it is not within prescribed time, clerk will issue preliminary hearing notice. A note of the same is taken by him in the Appointment Diary. S.T.I. : The appeal memo has to be scrutinised by the Inspector and the necessary report to that effect shall be submitted before the Appellate Authority about the completeness of the appeal memo in all respect. Appellate Authority (J.C./D.C.):
8.3 Conduct of hearing:
If Appellate Authority is satisfied with the report of the STI then he approves the issue of the preliminary hearing notice. Clerk: Nil S.T.I. : Documents relating to the defects or omission are verified by the Inspector. Appellate Authority (J.C./D.C.):
2 If the Appellate Authority is satisfied with the report of the STI he will admit the appeal. If the defects are not removed then appeal shall be rejected. 8.4 Appeal hearing:
8.5 Stay proceedings:
Clerk: Clerk will issue final hearing notice. STI: STI verifies the documents and the facts of the case and puts up the file for the scrutiny of the Appellate Authority. Appellate Authority (J.C./D.C.): After hearing the appellant/representative the Appellate Authority shall decide the appeal and accordingly pass the appeal order. Clerk: On receipt of stay application the clerk will issue notice for stay proceedings. S.T.I. : Inspector will verify the reasons for grant of stay with reference to the grounds of appeal and put his report to the Appellate Authority. Appellate Authority (J.C./D.C.): After hearing the appellant/representative the Appellate Authority shall decide the quantum of payment for grant of stay or in case whether dues are not involved in the appealable order, he shall decide on what condition stay order will be issued.
8.6 Review
Clerk:
a) Initiation of proceedings and issue of notice.
On receipt of report from the appropriate authority along with file for review, the clerk shall take entry of the same in the Audit Register and handover file to the STI for scrutiny. STI: 1.The STI will verify the report and its contents with reference to the record submitted by the officer and submit its report to the Appellate authority about feasibility of action of review on the same. Appellate Authority: 1.On perusal of report of STI and after going through the Record under review, if the Appellate Authority is satisfied
2 that the action under review is necessary, he will direct to issue Notice in form 309 Clerk: b) Fixing of case for review and hearing
1. The clerk shall issue notice in form 309 as per direction of the Appellate Authority. Care should be taken to see that sufficient time is given before the date of hearing to observe the statutory period. As far as possible, notice be issued 30 days in advance. The entry shall be taken in the Appointment Diary. Where the case adjourned to next date the entry thereof shall be taken in the appointment diary from time to time. STI: 1. On appointed day the STI shall verify the evidence and other documents and books of accounts for verification in response to the notice and submit his report to the Appellate Authority. Appellate Authority : 1. Appellate Authority after hearing the dealer/his representative will take the appropriate decision on the review of case and shall close the matter for order.
Appellate Authority : 1. The review order accordingly shall be passed by Appellate Authority within 15 days from the date of final hearing. c) Passing of order:
Clerk: 1.The clerk shall take entry in the Audit Register and send the record with copy of review order to the respective authority for further action. A copy of review order shall be submitted to the Supervising Authority by the end of the next month in which order is passed. Appellate authority. 1. Where there is omission or error apparent from the record, the appellate authority is empowered to rectify the mistake u/s 24. On notice of such mistake the Appellate Authority will gives direction to the STI to issue notice for rectification in
2
8.7 Rectification:
form 306 and point out the mistakes proposed to be rectified. The dealer may also apply for rectification of mistake in form 307.
Clerk: a) Application for rectification and 1. On receipt of application from the dealer for rectification, issue of notice the clerk shall take entry in the Rectification Register. He will hand over the file with application to the STI. STI: 1.He will verify the contents of the rectification application and the file and after approval by the Appellate Authority will ask the clerk to issue notice for hearing on the rectification application. Where the sou motu rectification is to be carried out as per direction of the Appellate Authority, he will issue notice in form 306 and call the dealer at appropriate date. 2.On appointed day the dealer/representative produces his explanation, evidence and other documents and books of accounts for verification in response to the notice. The STI shall verify the same and put his report to the Appellate Authority. Appellate Authority: 1. The Appellate Authority after hearing the dealer/his representative will take the appropriate decision on the rectification of case and shall close the matter for order. 2. The rectification order accordingly shall be passed by Appellate Authority within 15 days from the date of final hearing. b) Hearing
Clerk:
c) Passing of order
1. The clerk shall take entry in the rectification Register and send the record with copy of rectification order to the respective authority for further action. A copy of rectification order shall be sent to the dealer. A copy of rectification order shall be submitted to the Supervising Authority by the end of the next month in which order is passed. Clerk : After passing appeal order the appeal clerk, shall submit the copies of appeal orders for the respective month to the concerned Reviewing Authority by the end of the next month. Where the appeal records are necessitated by the
2 Reviewing Authority, the same shall be submitted immediately. There shall be maintained Audit Register as per Annexure ____. The Audit objections recorded by the concerned authority shall be entered in the Audit Register. 8.8 Files for scanning
Clerk: After service of order the acknowledgement shall be filed in the Appeal file/Review file/Rectification as the case may be. The file shall be paginated and indexed. If the dealer/appellant prefers appeal against the order, the relevant file shall be submitted to the respective appellate authority.
8.8 Record
Clerk: If appeal is not preferred against the order passed by a) Preparation of Appellate Authority the said file shall be preserved in the appeal office for a period of one year. Similarly where the file file is received back from the appellate authority after passing b) Sending file to appeal order, it shall be preserved for one year. The file thereafter it shall be sent to the record section. The entry record section shall be taken in the Register of Record. STI:STI has to supervise the work of sending file to the record and take stock of the files on quarterly basis.
9 Reporting formats of the Branch: Attached as enclosures
10 Various control registers for the branch and formats of the same. :Attached
11. Inspection procedure and frequency: Not relevant 12. Comment on record filing system. : Already covered in functions. 13. Responsibility and date for updating the manual.
2 There is need to update the manual considering the changes in Act and procedure time to time. Hence manual my be updated annually and preferably in the month of April of each year. The manual shall be updated by the office of Additional Commissioner of Sales Tax, Mumbai Zone, Mumbai.
