The GST Tribunal

Certainty in disputes

August 2017

By Sashi Sekaran Selvarajah and Harvina Kaur Olikh

The GST Tribunal (“Tribunal”) is the sibling of the Special Commissioners of Income Tax (“SCIT”)[1], having born to the same parent -the Ministry of Finance (“MoF”) – albeit with a different personality and budding experience.

The MoF rarely interferes in the jurisdiction of the SCIT as it recognizes the need for the unfettered growth of the SCIT’s distinct appellate function as an independent institution within the MoF. Whether the Tribunal will develop to the same autonomy however, remains to be seen.

The question potentially stirring in the mind of the taxpayer is: how effective is the newest member of the family?

Still in its infancy, the Tribunal’s potential can be projected based on the performance of its cousins in Australia and New Zealand –The Administrative Appeals Tribunal (“AAT”) and The Taxation Review Authority (“TRA”), respectively.

The Tribunal was established as an avenue for taxpayers to appeal against decisions of the Director General (“DG”) of Customs. The framework is fairly simple:

• Upon application for a review to the DG2 and in the event of an unfavorable decision by the DG, the taxpayer files an appeal to the Tribunal[3] against the decision of the DG.
• The taxpayer may be represented at the Tribunal by any person whom he may appoint[4].
• The Tribunal’s decision is deemed an order of the Sessions Court[5].
• The Tribunal’s decision may be appealed by an aggrieved party to the High Court[6]. 
• Further appeal from the High Court’s decision is limited to the Court of Appeal[7].

Please note that the jurisdiction of the Tribunal is restricted from hearing appeals on certain prescribed non-appealable matters. Fourth Schedule of the Goods and Services Tax Act 2014 (“GSTA”) – Non-Appealable Matters[8].

The Enabling Approach 

Enabling the Tribunal through relevant representation

The Tribunal may hear appeals without regard to technicality and formality. It is authorised to examine evidence, witnesses[9], request for information[10] etc. This flexibility in form and procedure provides a platform for factual and technical dispute resolution, that is potentially faster and more practical, rather than a purely legal and procedural resolution. 

Taxpayers would therefore be better placed at the Tribunal when supported by specialist technical tax experts to resolve the ‘devil in the detail’ of supply-based consumption tax or GST.

The factual determination at the Tribunal thirsts for detailed technical analysis, a deep and experienced conceptual understanding of GST and quasi-legal submissions. The end result is intended to be a quick and balanced Order of the Tribunal in favor of practicality and equity for both parties.

It is thus pertinent to appreciate that the Tribunal’s efficacy in upholding the taxpayer’s right to equity depends on the nature of the proceedings. This is dependent on the taxpayer making educated submissions during the appeal – which hinges on the ability of the taxpayer’s representation at the Tribunal.

Our team of professionals from legal, accounting and finance, and taxation backgrounds can assist you in your appeals to the Tribunal by providing the following services:

• Advise on your merits of appeal to support your decision if any to appeal to the Tribunal.
• Assist with preparation of written submissions, witness statement(s) and cross examination questions.
• Strategising the merits of your appeal, reinforcing and presenting your grounds of appeal at Tribunal hearings.

Sashi Sekaran Selvarajah is a Senior Associate Consultant and Harvina Kaur Olikh is an Associate Consultant of the Indirect Tax Advisory Group at PwC Malaysia.

Notes:

¹Special Court for income tax appeals against the decision of the Director General of the Inland Revenue Board in Malaysia.

²Section 124 of the Goods and Services Tax Act 2014 (“GSTA”).

³Section 126 of the GSTA.

⁴Section 141 and Section 170 of the GSTA.

⁵Section 146 of the GSTA.

⁶Section 148 of the GSTA.

⁷Section 96 of the Courts of Judicature Act 1964.

⁸Fourth Schedule of the GSTA – Non-Appealable Matters.

⁹Section 142 of the GSTA.

¹⁰Section 143 of the GSTA.