Are There Any Adjudicating Officer Under Uttarakhand GST Law As On Today

In Uttarakhand the first appellate authority is not hearing any appeal under section 107 of the Uttarakhand Goods & Service Tax Act-2017(UGST) against the orders passed by the adjudicating Officer after the judgement was passed by H'ble High Court Nainital in the matter of Vinod Kumar Vs. Commissioner Uttarakhand State GST & Other By S.P No.123 of 2022 Dated 20Th June 2022 Since 20.06.2022.

The Question That Arised Before The H'ble High Court Was 'Whether the Assistant Commissioner of GST, whose order is in challenge in this case, is an adjudicating authority, or not?.The H'ble Court Considering The question took reference of the decision of Hon'ble Supreme Court in Radha Krishan Industries Vs State of Himachal Pradesh and others, (2021) 6 Supreme Court Cases 771, wherein it was held that 'It is appropriate to take note of the fact that Sub-Section (1) of Section 107 of the H.P. Act, which is almost pari materia with the Sub-Section (1) of the Section 107 of the Uttarakhand Act, which provides a forum for appeal against an order passed by an adjudicating authority. Section 2(4) of the H.P. Act provides that "adjudicating authority" means any authority, appointed or authorised to pass any order or decision under this Act, but does not include the Commissioner, Revisional Authority, the Authority for Advance Ruling, the Appellate Authority for Advance Ruling, the Appellate Authority and the Appellate Tribunal.'

Further Section 2(4) of the Uttarakhand Act defines 'adjudicating authority' to mean any authority, appointed or authorised to pass an order or decision under this Act, but does not include the Commissioner, Revisional Authority etc. The Provisions of Uttarakhand Act is similar with the definition of 'adjudicating authority' provided in the H.P. Act.

The Hon'ble Court taking note of Section 3 of the Uttarakhand Act, which provides for appointment of class of officers and Section 5 which provides for 'Powers of officers', and Section 2(91) which provides for 'proper officer' under the Act, found that the Assistant Commissioner acts under the control & support of Commissioner and nowhere in the Act it is provided that he shall act independently to the duties assigned by the Commissioner. Therefore, the observation of the Hon'ble Supreme Court, i.e., the Commissioner is not an adjudicating authority, hence an appeal will not lie against the orders passed by him under Section 107 of the Uttarakhand Act shall also be applicable to any orders passed by the Assistant Commissioner, be it attachment of property or cancellation of GST registration number.

First Lets Go Through Uttarakhand Goods & Service Tax Act-2017(UGST)

Section 2(4)" "Adjudicating Authority" means any authority, appointed or authorized to pass any order or decision under this Act, but does not include the Commissioner, Revisional Authority, the Authority for Advance Ruling, the Appellate Authority for Advance Ruling, the Appellate Authority and the Appellate Tribunal.

It Is Clear From Above That Adjudicating Authority means any authority, appointed or authorized to pass any order or decision under SGST Act 2017 Except The Above Said Authorities, which further means that the above said authorities are not adjudicating authority & are not permitted to pass an order/ decision under the SGST laws and hence shall not be an Adjudicating Authority

Section 2(91) defines the word "Proper Officer" in relation to any function to be performed under this Act, means the Commissioner or the officer of the GST who is assigned that function by the Commissioner.

It is clear that proper officer means the commissioner or the officer authorized by the Commissioner.

It is crystal clear from above that only the adjudicating authority have the powers to pass any orders under UGST which does not include proper officer.

Section 107 Appeals to Appellate Authority: (1)Any person aggrieved by any decision or order passed under this Act or the Central Goods and Services Tax Act by an adjudicating authority may appeal to such Appellate Authority as may be prescribed within three months from the date on which the said decision or order is communicated to such person.

It means that appeal can only lie u/s 107 Of UGST Act-2017 against the order passed by the adjudicating authority and not against the order passed by the Proper Officer.

In Uttarakhand All the powers have been delegated by the Commissioner Vide circular No.1553 Dt 30.06.2017 to the Proper Officer to act as Adjudicating Authority which is against the definition of adjudicating authority because Commissioner cannot be the adjudicating authority.

My Personal View On H'ble Court Judgement

1. That any decision/order in UGST-Act can only be passed by the adjudicating authority as defined U/s 2(4).
2. That the proper officer(Commissioner)as defined u/s 2(91) cannot pass any order since the proper officer is not an adjudicating authority as defined under section 2(4).
3. That the circular no 1553 dt 30.06.2017 is NULL and VOID as commissioner cannot appoint adjudicating authority.
4. That the appeal u/s 107 shall only lie against the order/decision passed by the adjudicating authority.
5. That H'ble court has not barred the appellate authority from hearing the appeal.

Current Situation In Uttarakhand(Post-Judgement)

1. That all the orders are passed by the proper officer who have been delegated to act as adjudicating authority by the commissioner vide circular no.1553 dt 30.06.2017(No Change).
2. That no order is passed by an adjudicating authority as defined under section 2(4).Of UGST Act-2017.
3. That the appellate authority is not hearing any appeal under section 107 of UGST Act-2017
4. That there has been rise in cases where un-necessary demands are being created and the orders are being passed as they are aware that the appeals are not being heard , for e.g. In e-way bills.

Consequences Faced By The Taxpayers Of Uttarakhand

1. The tax payer is left with two option either deposit the demand created or move to high court.
2. The small tax payers are depositing the demand so as to avoid unnecessary harassment/financial burden/time loss.
3. The other tax payer's are bound to move to High court as there is no alternate remedy due to which are facing unnecessary harassment/financial burden/time loss.

Solution

1. That the Commissioner should repeal the circular no.1553 dt 30.06.2017 with immediate effect.
2. That the commissioner should declare all the orders passed by the officers who were declared adjudicating authority vide circular no.1553 dt 30.06.2017 as NULL And VOID.
3. That the Commissioner should immediately pass an order that no proper officer should pass any order that may become subject matter of appeal.
4. That the Commissioner/ Commissioner(Appeal) should declare all the order passed U/s 107 till date 20.06.2022 as NULL And VOID.
5. That The State Govt. Should Take Immediate Steps By Amending The UGST Act-2017(In Section2(4)/ Section2(91)/ Section 107). Mukesh Kuriyal Advocate