An advocate could be appointed as a judicial member of the GSTAT if they have ten years of substantial experience in indirect tax litigation before the appellate tribunal.The amendment states that the president and the judicial and technical members of GSTAT will serve in their roles for four years, or until the president turns seventy-seven or sixty-seven years old, whichever comes first.
Gunjan Prabhakaran, Partner & Leader, Indirect Tax, BDO India states, that
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The CGST Amendment Bill has proposed amendments in the CGST Act to give an effect to the decisions made regarding appointment of members. The introduction of these amendments brings setting up of the GSTAT a step closer. A functioning GSTAT is the need of the hour, with many taxpayers awaiting setting up of the GST Tribunal for filing appeals against the orders passed by the first appellate authorities and to obtain a certainty on the tax positions adopted.”
TOI has reported several instances, where high courts have stayed GST demands pending formation of the GST Tribunal, which in turn would provide the taxpayers a forum to file appeals.
In the case of Rochem India, before the Bombay High Court, the Chairman of the Central Board of Indirect Taxes and Customs (CBIC) had in an affidavit indicated that no hardship would be caused to taxpayers because of the non-constitution of the GST Tribunal. A CBIC circular dated March 18, 2020 also clarifies that an appeal to the GST Tribunal can be made within three months (six months in case the appeal is being filed by government) from the date of the order sought to be appealed against, or the date on which the President or State President of the GST Tribunal enters office, whichever is later.
In the case of Gulf Oil Lubricants, the Bombay high court has directed the GST authorities that all orders passed by them, which can be appealed at the GST Tribunal level, should stipulate that the taxpayer can file a declaration of its intention to file an appeal. Once such a declaration is filed no GST demand recovery should be initiated. the divisional bench of the Calcutta High Court in the case of Jai Venktesh Concast had stayed recovery proceedings and modified the order of the single judge bench, in which a condition of payment of 20% of the disputed tax was made to grant a stay of the demand raised.
