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Provisions of GST Appellate Tribunal post Finance Act, 2023

Provisions of GST Appellate Tribunal post-Finance Act, 2023

The Finance Bill 2023, presented on 1^st February 2023, got approval in Lok Sabha on 24^th March 2023. The Bill got approval in Rajya Sabha on 27^th March 2023. Whereas, the presidential assent was received on 31^st March 2023.

Importantly, the Finance Act, of 2023 came up with a hope of constitution of the Goods and Services Tax Appellate Tribunal after more than 5 years of implementation of Goods and Services Tax.

In the present article, we will go through the provisions of the GST Appellate Tribunal as substituted post-enactment of the Finance Act, 2023.

Constitution of the Goods and Services Tax Appellate Tribunal and jurisdiction of members thereof –

The Finance Act, 2023 entirely substituted the provisions of section 109 of the Central Goods and Services Act, 2017. As per the substituted provisions, the Appellate Tribunal will be constituted for hearing appeals against orders passed by the Appellate Authority or by the Revisional Authority.

The constitution and composition of the Goods and Services Tax Appellate Tribunal is briefly explained in the table below –

Bench	Particulars	Constitution of Bench
Principal Bench of Appellate Tribunal	Principal Bench will be in New Delhi	The President; A Judicial Member; A Technical Member (Centre); and A Technical Member (State).
State Benches of Appellate Tribunal	State Benches will be established/ set up based on the request of the State as well as the recommendation of the GST council	Judicial Members (Two); A Technical Member (Centre) (One); and A Technical Member (State) (One). Vice President for such State Benches shall be the senior Judicial Member within the State Benches.

The jurisdiction of members is explained in the table below –

Matters to be heard by	Circumstances
Principal Bench	Case, wherein one of the matters involved relates to the place of supply.
Single Member	Where tax/ input tax credit involved or amount of fine/ fee/ penalty determined in the order appealed against doesn’t exceed INR 50 Lakhs; and The matter doesn’t involve any question of law.
One Judicial Member and One Technical Member	All other cases

Other relevant provisions –

• The Government is empowered to transfer Members from one Bench to another Bench. However, a Technical Member (State) of the State Bench can be transferred to a State Bench of the same State only;
• Vacancy or defect in the constitution of the Goods and Services Tax Appellate Tribunal will not invalidate the Act or proceedings of the Appellate Tribunal.

Dealing with differences of opinion amongst Members –

In case, post-hearing, there arises a difference of opinion amongst the members. Such difference of opinion will have to be dealt with in the following manner –

• Members need to state the point/ points on which their opinion differs;
• Accordingly, the President will refer the such case for the hearing in the following manner –

1. Case of the Principal Bench –

The case of the Principal Bench will be referred to another member of the Principal Bench. If no such Member is available, the case will be referred to a Member of any State Bench.

Importantly, point/ points where opinion differs will be decided based on majority opinion (which includes the opinion of the Members who heard the case first).

2. Case of the State Bench –

The case of the State Bench will be referred to another Member of the State Bench. If no such Member is available within the State, the case will be referred to a Member of a State Bench in any other State.

Qualification, appointment, and condition of service of the President and Members of the Appellate Tribunal –

Provisions of section 110 of the Central Goods and Services Tax Act, 2017, dealing with qualification, appointment, and conditions of services are substituted entirely vide the Finance Act, 2023. The relevant provisions are briefly explained hereunder –

• Qualification of the President and the Members of the Appellate Tribunal –

Position	Qualification
The President	Been a Judge of the Supreme Court; or Is or has been Chief Justice of the High Court.
Judicial Member	Been Judge of the High Court; or Been District Judge/ Additional District Judge (for a combined period of 10 years).
Technical Member (Centre)	Is or has been the member of Indian Revenue (Customs & Indirect Taxes) Service (Group A) or member of All India Service; Should possess at least 3 years of experience in administration of existing law/ goods and service tax in the Central Government; and Has completed at least 25 years of service in Group A.
Technical Member (State)	Is or has been an officer of either the State Government or All India Service

• Appointment/ re-appointment of the President and the Members –

The appointment or re-appointment of the President and the Members will be conducted by the Government based on the recommendation of the ‘Search-cum-Selection Committee’.

Notably, while making selection of the Technical Member (State) of the State Bench, priority should be given to the officers who has worked in the State Government of the State, wherein, the jurisdiction of the Bench extends.

• Tenure of the President and the Members –

The holding period of the office of the President and the Members is explained hereunder –

Position	Tenure
The President	Earlier of the following – 4 years from the date of entering the office; or Until attaining age of 67 years. Re-appointment for a period of maximum 2 years is allowable.
The Judicial Member/ Technical Member (Centre)/ Technical Member (State)	Earlier of the following –  4 years from the date of entering the office; or Until attaining age of 65 years. Re-appointment for a period of maximum 2 years is allowable.

• Removal of the President or the Member –

The President or the Member can be removed if –

• has been found guilty of an offense that includes moral wickedness;
• has been announced an insolvent;
• has become physically/ mentally incapable of acting as a President or as a Member;
• has abused his position (either as President or as a Member) to render his continuation prejudicial to public interest;
• has acquired financial/ other interest as is likely to affect his functions prejudicially as such President/ Member.