Authorised  Representative plays a crucial role by appearing as a legal representative of another person in adjudicating proceedings under the GST regime. Section 116 provides qualification,disqualification and other procedures relating to authorised representative which are articulated under this article.

  1. Concept of authorised representative

             Authorised  Representative is a authorised by a person to appear on his behalf in any proceedings. ‘Authorised Representative’ has been defined  in the Goods and Services Act itself. Section  2(15) of the  central Goods and services Act ,2017 (hereinafter reffered to as “ the CGST Act”) defines ‘authorised representative’  as     representative reffered to in section 116. Broadly, it includes a relative, a regular employee, an advocate, a charted accountant, a company secretary, or any person with prescribed qualifications. It is also provided that indirect tax gazetted officers can appear as authorised representative after one year from retirement.

         The GST law also specifies for some disqualification for an authorised representative such as dismissal from government service, conviction under some specified Acts, insolvency, misconduct, etc. Such orders of disqualification are, however , required to be passed after complying the principles of natural justice.

2 . Appearance by authorised representative

       Section 116(1) provides that any person can appear by an authorised representative in any proceedings under the Goods and Services regime.By virtue of this, an authorised representative can appear before the following authorities-

1. GST Officers,

2. The Appellate Authority under GST Law,

3.The Appellate Tribunal under GST Law.

        However, a person is not allowed to appear by an authorised representative  when he is required  under the Act to appear personally for examination on oath or affirmation.

3.   Persons who can be authorised representative

          Section 116(2) places limitation on the persons  who may be authorised to represent before the authorities. The following categories of persons are so permitted to act as an authorised representative on his behalf -

  1. Relative or persons regularly employed by the registered person

                Relative or regular employee of an registered  person  who has authorised him to act can be appointed as an authorised representative.

       2. Advocate

            An advocate who is entitled to practice in any court in india, and who has not been debarred from practicing  before any court in india, can represent the assessee.

    3. Professionals

           Any  charted accountant, a cost  accountant or a company secretary who holds a certificate  of  practice and who has not been debarred from practice, are permitted to act as an authorised representative.

    4. Government officers

        A retired officer  of the Commercial tax  department of any State Government or Union  territory   or of the Board who, during his services under the Government had  worked  in a post not below the rank than that of a Group –b Gazetted officer for a  period of not less than two years  can be  a appointed as an authorised representative.

        However, such officer  would  not be entitledto appear before any proceedings under the GST Act  for a period of one year from the date of his retirement or resignation.

 5. GST  practitioner

           A GST  practitioner would  also be allowed to appear as authorised  representative before any  officer of  department, Appellate  Authority or Appellate Tribunal, on behalf  of a registered person who has authorised  him to be his GST practitioner.

4.  Disqualification for acting as an  authorised representative  

       The Disqualifying factors in relation  to a person representing the assessee under section 116 are contained in sub-section  (3) thereof which are as follows:

1. Who has been dismissed or removed from Government services; or

2. Who is convicated of an offence connected with any proceedings under this Act, the State  Goods and  Services Tax Act, the Integrated Goods and Services Tax  Act or the  Union  Territory Goods ad Services Tax Act, or under  the existing law or under any of the Integrated  Goods and Services Tax Act or the Union Territory Goods and Services Tax Act, or under the existing law  or uder any of the Acts passed by a State Legislature  dealing with the imposition of taxes on sale  of goods or supply of goods or services or both;  or

3. Who is found guilty of misconduct by the prescribed  authority;

4. Who has been adjudged  as an insolvent.

Such disqualifications  to act as an authorised representative  would  work  for the  period as mentioned under-

  1. For all times in case of persons reffered  to in clauses  (a),  (b)  and (c); and
  2. For the period during which  the insolvency  continues in the case of a person reffered  to in clause (d).

5. Action  for misconduct of an authorised representative 

         In term of rule  116 of the CGST Act, 2017, where an authorised representative, ( other than those  advocate/  CA/  CS/  CWA) is found, upon an enquiry into the matter, guilty  of connection with any proceedings  under the act, the Commissioner may, after providing him an opportunity of being heard , disqualify him from appearing as an authorised representative.

6. principle of natural justice to be followed

         The principle of natural justice has to be observed before any adverse action is going to be observed before any adverse action  is going to be taken against the assessee. One of the grant of an opportunity of hearing, oral or in writing,before conclusion  is arrived at by the authority exercising their powers.

7. Applicability of SGST Act/ UTGST Act

         Any person who has been disqualified under the provisions of the State Goods and Services Tax Act or the Union Territory Goods and Services Tax Act will be deemed  to be  disqualified under the GST Act as stated under section 161(4) of the CGST Act.

8. Applicability of IGST Act

         Section 20 of the IGST stipulates that the provisions of the CGST Act would, mutatis mutandis, apply to integrated  tax as they apply in relation to central tax as if these are enacted  under this Act. Accordingly, there is no separate provisions regarding authorised representative under the IGST Act, thus, the provision available  under the CGST Act, is made applicable to IGST  Act.

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Mr. Anil D'Souza, one of the few entrants of an elite list of chartered accountants in Bangalore can help you in person with understanding the concept of authorized representative.

In the case of Pr.CIT, New Delhi v. Delhi Airport Metro Express Pvt.Ltd. [ITA No. 705/2017, decided on 5-9-2017]  the Commissioner  opined that assessing officer allowed depreciation in excess of what was assessing officer  to make fresh assessment. The Delhi High Court held that for the purpose of exercising jurisdiction under section 263 of the Act, the conclusioin that the order of the assessing  officer is erroneous and prejudicial to the interests of the Revenue has to be preceded  by some minimal inquiry. That basic exercise of determining as to what extent the depreciation was claimed in excess has not been undertaken by the Pr. CIT. He had exercised the second option available to him under section 263(1) of the Act by sending the entire matter back to the assessing officer for a fresh assessment. That option, in the considered view of the Court, can be exercised only after the Pr. CIT undertakes an inquiry himself. The   High Court held that revision was not justified.The learned author discusses the case in detail.      

  1. Introduction

            Subject to it’s Explanations, section 263(1) of the Income Tax Act,1961 (‘Act’) states that the principal Commissioner may call for and examine the record of any proceeding under the Act, ad if he considers that any order passed therein by the assessing officer is erroneous on so far as it is prejudicial to the interests of the revenue, he may after giving the assessee an opportunity of being heard and after such order thereon as the case justify, including an order enhancing or modifying the assessment, or canceling the assessment and directing a fresh assessment.

            More recently, in Pr. CIT, New Delhi  v. Delhi Airport Metro Express pvt.Ltd. [ITA No. 705/2017, decided on 5-9-2017], the short question  raised by  the Revenue was whether the ITAT was justified in setting aside the order  of the Principle Commissioner  of Income Tax  (‘Pr. CIT’)  passed  under  section 263  of the Act  in  respect of assessment year 2011-12 setting aside the original assessment order  dated 31-12-2013 passed by the Assessing Officer  (‘AO’) under section 143(3) of the Act.

2. Facts of the case

            The brief  facts in the above –mentioned case were that the assessee being a concessionaire of the Airport Metro Express Project of the  Delhi Metro Rail Corporation  Ltd.  (‘DMRC’) under a Build-Operate-Transfer (‘BOT’)  Scheme, had accepted the concession  for a period of 30 years During the assessment year in   question, the assessee claimed depreciation of Rs.112,29,74,447, on fixed assets  of Rs.15,60,48,17,189 50% of the eligible depreciation rates since, during the assessment year in question, the assets were used  for less than 180 days. The assessing officer framed the assessment under section 143(3) of the Act allowing depreciation as claimed by the assessee.

           The case of the revenue was that the assets were developed under the BOT scheme and  the assessee was not eligible to claim depreciation as it was not the owner of the assets. The Revenue contended that the land for the project was handed over by the DMRC to the assessee  as Concessionaire  of the  basic structure was also done by the DMRC.

          The case of the assessee was that during the assessment year in question it had purchased and installed plant and machinery and such plant and machinery was legally owned by it. It was further contended that since such assets were used for the purpose assessee’s business,it was entitled  to claim depreciation under section  32 of the Act.

          The Pr. CIT, in exercise of powers under section 263 of the Act issued a show cause notice (SCN)  dated 16-3-2015  to the assessee pointing out that if the value of  these fixed assets  were to be amortized evenly over a period of 30 years, the amount  of to be amortized  would only be Rs.52,01,60,572 for each year. Therefore, the depreciation allowed to the assessee was in excess by Rs. 60,28,13,875 and, to that  extent, the order passed by the assessing officer  was prejudicial to the interest of the Revenue. In reply to the SCN, the assessee took the stand that, interest of the Revenue. In reply to the SCN, the assessee took the stand that, during the assessment year in question, it “had purchased the assets from independent vendors, out of its own funds for settings up the project.

           Thereafter, order dated 30-3-2016 was passed by the Pr. CIT.

3. Thus held the court

             The learned Judges of the Delhi High Court observed that for the purpose of exercising jurisdiction under section 263 of the Act, the conclusion that the order of the assessing officer is erroneous and prejudicial to the interests of the assessing officer is erroneous and prejudicial to the interests of the Revenue has to be preceded by some minimum inquiry. In fact, if the Pr. CIT was of the view that the AO did no undertake any inquiry, it became incumbent on the Pr.  CIT to conduct such inquiry. All that Pr.  CIT had done in the order was to refer to the Circular of the CBDT and conclude that “in the case of the assessee company, the assessing officer was duty-bound to calculate and allow depreciation  on the BOT in conformity of the CBDT Circular No. 9/2014 but the assessing officer is erroneous insofar as prejudicial to the interest of revenue”. In the considered view of the Court,this can hardly constitute jurisdiction under section 263 of the Act. In the context of the present case depreciation on assets like land and building, it was incumbent upon the purchased and installed by the assessee out of its own funds during the assessment year in question and, which were those assets that were handed over to it by the DMRC. That basic exercise of the determining as to what extent the depreciation was claimed in excess has not been undertaken by the Pr. CIT. He had exercised the second option available to him under section 263(1) of the Act by sending the entire matter back to the assessing officer for a fresh assessment.  That option, in the considered view of the Court, can be exercised only ofter the  Pr. CIT undertakes an inquiry himself in the manner indicated hereinbefore. That was missing in the present case.

           Finally, the Delhi High Court held, in respect of the appeal, that the ITAT was not in error in setting aside the order  of the Pr. CIT under section  263 of the Act, no substantial question of law arose herein.


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