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Authority for advance rulings - A critical analysis

  • Nov 15, 2019 | Keval Shah

“Advance ruling” means a decision provided by the Authority or the Appellate Authority to an applicant on matters or on questions specified in sub-section (2) of section 97 or subsection (1) of section 100 of the CGST Act, 2017, in relation to the supply of goods or services or both being undertaken or proposed to be undertaken by the applicant. An advance ruling is a legal process which helps an applicant in planning his activities which are liable for payment of GST, well in advance. It also brings certainty in determining the tax liability, as the ruling given by the Authority for Advance Ruling is binding on the applicant as well as Government authorities.

A legally constituted body called Authority for Advance Ruling (AAR) can give a binding ruling to an applicant who is a registered taxable person or is liable to be registered. The advance ruling given by the Authority can be appealed before an Appellate authority for Advance Ruling (AAAR).

This welcome step by the Govt was met with overwhelming support from the trade and industry and as a result, thousands of applications were filed before the Advance Ruling Authority seeking clarification on a variety of tax issues. Surprisingly, the Advance Ruling Authorities of various states had not only come up with contradictory rulings on the same subject but also most of the rulings were decided in favour of the revenue only. Further, the applicants rarely got any relief before the Appellate Authority of Advance Ruling as well.

Probably, the constitution of this forum, which consists only of revenue officers and not having an independent judicial member is one of the biggest reasons for this outcome. Further various AAR in different states provided for conflicting rulings in various cases.

This situation was further worsened by the recent order passed by the Bombay High Court in the case of JSW Energy Limited wherein it has been held that no appeal can be filed against an order of the Appellate Authority of Advance Rulings on "merits" since no appeal has been provided under the GST Act. 

Seeing this trend, strong perception in the Trade and Industry is getting build as to why one should even approach the Advance Ruling Authority who is likely to decide the matter against the assessee and when practically there is no appeal mechanism against the said order. Whereas if the assessee opts the route of the adjudication, the doors of the tribunal as well as the courts would always be open to seek relief. Given this, it appears that the whole objective of creating this forum to provide speedy resolution of issues, instead of going through the long-drawn litigation route, is getting defeated.

Appreciating the need of the industry, the Budget 2019, tried to address this issue by introducing the National Appellate Tribunal for Advance Ruling under Section 101A of the CGST Act, 2017. 

The constitution of the National Appellate Tribunal for Advance Ruling appears to solve the issue of departmental bias, by introducing a judicial member and also introducing an option of appeal against the orders of the Appellate Authority which was previously absent under the GST Laws. However, the wording of Section 101B of CGST Act suggests that an appeal before National Appellate Tribunal for Advance Ruling would lie only in cases where the views taken either by the members of Appellate Authority of Advance Ruling constituted in the same state or in different states are contradictory.

Though this new proposal by the Government seems to provide relief in some aspects i.e. when there are contradictory views from either of the members of the same Bench or amongst the coordinate Benches of different states. However, there is no relief provided against the order of the AAAR if the ruling goes against the assessee. Therefore, the National Appellate Tribunal for Advance Ruling would have a limited utility, and this brings the taxpayer back to square one.

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Avalara Author
Keval Shah
Avalara Author Keval Shah
Keval Shah is the Founder Partner of ConsultingEdge and has a handy experience of more than ten years into indirect taxes. Keval is presently the Convener of Indirect Tax Committee of Chamber of Tax Consultants. He has authored a book on GST Impact on Construction Industry published by “GST Practitioners Association of Maharashtra”. He regularly speaks at forums like ICAI, Chamber of Tax Consultants, BCAS and is a visiting faculty at Indo-German Training Centre.