AI Structured Summary
Not yet generated for this judgment
Judgment
P.R. Ramachandra Menon, CJ
The Writ Petitioners are again before this Court, contending that there are some inadvertent errors in the common judgment dated 20.11.2019
passed by this Court in Writ Petition (T) No. 77 of 2019 and connected cases, which necessitates review.
The contention of the Petitioners is that though the matter was heard exhaustively on different dates, some of the issues and vital submissions made
in this regard were inadvertently lost sight of while passing this judgment. The specific case is that despite raising 'three fold' challenge, as to the
sustainability of Annexure P/2 Gazette Notification dated 01.07.2017 for not having been issued by the Central Government, but the Central Board of
Indirect Taxes and Customs; the Annexure P/1 Circular dated 05.07.2017 in appointing the 'Proper Officers' without any notification in the gazette as
envisaged under Section 167 read with Section 168 of the Central Goods and Services Tax Act, 2017 (hereinafter referred to as 'the CGST Act') and
also as to the plurality of (several) Proper Officers appointed all throughout the territory of India, in violation of the scheme of the statute and also the
Constitution of India, this Court has unfortunately omitted to consider the challenge in respect of 'Annexure P/1 Circular' dated 05.07.2017 and the
'plurality of Proper Officers' which requires interference and hence, the prayer to have the writ petitions heard afresh.
Heard Shri Kartik Kurmy, the learned counsel appearing for the Review Petitioners, Shri B. Gopa Kumar, the learned Assistant Solicitor General
for the Union of India and Shri Maneesh Sharma, the learned Standing Counsel representing the Central Board of Indirect Taxes & Customs, at
length.
The learned counsel for the Review Petitioner points out that the case of the writ petitioners has been correctly noted by this Court as observed in
paragraph 2 and 15 of the judgment. But coming to the subsequent portion of the judgment, there is a mistake in respect of the observations in
paragraphs 12 and 20 leading to dismissal of the writ petitions, which is not correct as per the materials brought on record. The learned counsel
submits that the challenge raised by the writ petitioner against Annexure P/1 Circular was an independent challenge and it was not an off-shoot of the
challenge against Annexure P/2 Notification dated 01.07.2017. By virtue of the corrigendum Notification dated 29.07.2019 issued by the Central
Government, the mistake appearing in Annexure P/2 Notification as if it were issued by the Board has been corrected as having issued by the Central
Government; answering the said question against the Writ/Review Petitioners. But still, the challenge against Annexure P/1 Circular was an
independent one and hence the learned counsel reiterated the submissions as pleaded in the Writ Petitions/Review Petitions and also as pointed out
earlier.
The contention of the Review Petitioners is that appointment of Proper Officers could have been effected only by way of notification i.e.
notification in the official gazette and admittedly since Annexure P/1 Circular is not a gazette notification, which is a mandatory requirement in view of
Section 167 read with Section 168 of the CGST Act, it is liable to be set aside. Similarly, it is pointed out that the statute does not contemplate
appointment of several persons as Proper Officers defined under Section 2(91) of the CGST Act and the scheme of the Act is only that there be 'one
assessee', 'one subject matter' and 'one Proper Officer'. This is stated as discernible from the course of action to be pursued as mentioned under
Section 6(2)(b) of the CGST Act as well, which prohibits the proper officer under the CGST Act to conduct parallel proceedings, if proceedings have
already been initiated by a Proper Officer under the State GST Act or under the UT GST Act appointed u/s 6(1) of the CGST Act. Because of
appointment of Proper Officers throughout the country, the Petitioners are made to appear and answer before all such authorities at different places,
which in fact amounts to harassment and it adversely affects the rights and interest in pursuing the business, more so when the statute requires
registration only at a place of supply i.e. in the State of Chhattisgarh where registration has been obtained. It is in the said circumstance, that the
proceedings issued by the officer designated as 'Proper Officers' in the State of Jharkhand were sought to be challenged by filing writ petitions. While
passing the common judgment, after answering the question with regard to the challenge against Annexure P/2 Notification dated 01.07.2017 against
the writ petitioners, it is stated that this Court did not decide the issue with regard to the challenge in respect of the Annexure P/1 Circular dated
05.07.2017 and the contention with regard to the multiple Proper Officers appointed by the Respondents all throughout the country. It is pointed out
that, though the Respondents can appoint several Central Tax Officers, they cannot appoint so many Proper Officers, that too without any Gazette
notification in terms of Section 167 read with section 168 of the CGST Act. The learned counsel submits that the grievance of the Review Petitioners
is not in respect of appointment of Central Tax Officers vide Annexure P/2, but they are assuming the power as Proper Officers, that too, throughout
the India, which is quite unconstitutional.
Shri B. Gopa Kumar, the learned Assistant Solicitor General submits that the review petitions are neither maintainable in law nor in facts. The
grounds raised by the Review Petitioners are only suggestive for a re- hearing, which is not possible while exercising the power of review. It is stated
that there is no error apparent on the face of record which warrants interference. The legal and factual aspects have been meticulously answered by
the Respondents in their reply filed in answer to the contents of the writ petition and was argued accordingly. It was clearly pointed out that
notification in the Gazette was only required for the purpose of ""delegation"" and not for appointment of Proper Officers as discernible from Section
167 of the CGST Act. Section 167 sought to be relied on by the Petitioners only provides that, if the power is to be delegated to anybody from outside
i.e. who is having no power to act under the CGST Act, it has to be given only by way of notification, subject to conditions, if any. Hence, Section 167
of the CGST Act is not at all attracted with regard to the appointment of Proper Officers. Annexure P/1 Circular is only an assignment of the
functions and not a delegation of power to somebody who is not an authority or officer who can exercise the power/authority under the CGST Act
and hence within the scope of Section 168 of the CGST Act as well.
Shri Maneesh Sharma, the learned counsel appearing for the Respondent-Central Board of Indirect Taxes and Customs, made similar submissions
as already advanced when the writ petitions were heard (as pleaded in the return filed) and submits that only if an outside person is appointed as a
Proper Officer, then alone will a notification become necessary for delegation of the power in terms of Section 167 of the CGST Act. Proper Officers
can be identified from the Central Tax Officers and as such, assigning of the functions of Proper Officers as per Annexure P/1 Circular to act as
Proper Officer to those who are already designated as 'Central Tax Officers' as per proper notification published in the Gazette vide Annexure P/2
dated 01.07.2017, read with the Corrigendum notification dated 29.07.2019, clearly satisfy the legal requirements The necessity to appoint, identify and
engage Proper Officers in different parts of the country is asserted by both the learned Assistant Solicitor General and the learned counsel for the
Board; referring to the pleadings already brought on record and considered by this Court when the writ petitioners were heard and disposed of.
Issuance of fake bills showing tax details and subsequently claiming the tax benefit leading to loss of crores of rupees to the Department, because of
the deeds and misdeeds pursued by the Petitioners are referred to, adding that the scope of Section 6(2)(b) of the CGST Act is only with regard to the
assessment and not with regard to the steps to be pursued by the Proper Officers in different locations, wherever the mischief is committed or
perpetuated.
There is no dispute with regard to the nature of challenge raised by the Review Petitioners with reference to Annexure P/1 Circular dated
05.07.2017, Annexure P/2 Notification dated 01.07.2017 and the plurality of appointment of Proper Officers throughout the territory of the country.
The primary contention was with reference to the competency/authority of the Board to have issued Annexure P/2 Notification as per the relevant
provisions of the CGST Act, since such power is exclusively vested with the Central Government. Insofar as there was no notification by the Central
Government, Annexure P/2 Notification was stated as bad in all respects.
As noted in paragraph 4 of the judgment, the matter was heard on different dates including on 16.10.2019. After the hearing held on 16.10.2019,
they were taken up reserving judgment. In the course of working up the position, this Court came across a 'Corrigendum Notification dated
29.07.2019' published in the official Gazette (as noted in paragraph 21 of the judgment) whereby the mistake occurred in Annexure P/2 Notification
dated 01.07.2017 (to the effect that the said Notification was issued by the Board) was corrected as issued 'by the Government'. As noted in
paragraph 22 of the judgment, since the Corrigendum Notification dated 29.07.2019 was definitely to cut the roots of the case filed by the Petitioners,
this Court found it appropriate to cause the matter to be listed for consideration again. It was accordingly, that the cases were listed on 22.10.2019 and
the parties were heard again, as specifically noted in paragraph 22 of the judgment. Further opportunity was given to both the sides to verify the
position and to address the Court on merits and to make appropriate submissions after calling for the remarks/explanations from both the sides, listing
the cases on 06.11.2019. On that day, the learned counsel for the Writ Petitioners expressed sincere regrets as to the serious lapses in not bringing the
Corrigendum Notification issued on 29.07.2019 to the notice of this Court. So was done by the learned Assistant Solicitor General and also by the
Standing Counsel for the Respondent-Board. It was based on the apology tendered and the regret expressed from both the sides, as to the omission in
pointing out the correct factual position when the matter was heard on the previous occasion, that the arguments were concluded. No other arguments
were advanced by the Review Petitioners when the case was listed and heard on 22.10.2019 or on the subsequent date i.e. 06.11.2019 with reference
to the challenge raised against Annexure P/1 Circular or as to the appointment of multiple/plurality of officers. It was taking stock of the pleadings and
proceedings and the relevant provisions of law, that the matter was finalised by this Court in the manner as discernible from paragraphs 24 and 25 of
the judgment, after repelling the challenges made by the Writ Petitioners. It has been specifically observed in the 'penultimate sentence of paragraph
24' that the version of the Respondents on all the points raised including as to the necessity to appoint Proper Officers conferring power throughout the
territory of India for the specific purposes made out, stands upheld. In the last sentence of the very same paragraph, this Court further made it clear
that the contention/challenge raised by the Writ Petitioners, to the contrary, stands repelled. Thus, it is explicitly clear that the contention raised by the
Respondents that Section 167 of the CGST Act was not attracted to the case in hand and hence, no Gazette notification was necessary insofar as
Annexure P/1 Circular was issued; came to be upheld. Similarly, the contention of the Petitioners, to the contrary, having been repelled, it is not
correct or proper for the Review Petitioners to contend that there is some omission on the part of this Court in considering the challenge raised against
Annexure P/1 Circular dated 05.07.2017. The contention raised by the Respondents as to the circumstances under which the appointment of Proper
Officers in different parts of the country is necessitated; the contention that the scope and applicability of Section 6 of the CGST Act is more with
reference to 'assessment', which is not the purpose of appointing Proper Officers in different parts of the country conferring power to detect
mischief/foul-play (wherever that is committed by unscrupulous assessees) and the specific contention that if at all there is initiation of simultaneous
proceedings by two different officers in respect of the same cause of action, it will always be open for the assessee to bring it to the notice of the
officer who has taken parallel action to avoid parallel proceedings, have been upheld. Since this Court has upheld that above contentions of the
Respondents, repelling the contentions raised by the Writ Petitioners to the contrary, as mentioned in paragraph 24 of the judgment, there is no error
apparent on the face of record, to invoke the power of review.
The Review Petitioners have never pleaded in the review petitions that they had made any further contentions with reference to the initial
challenge raised against Annexure P/1 Circular or as to the plurality of the Proper Officers appointed throughout the country when the cases were
listed and heard by this Court either on 22.10.2019 or on 06.11.2019. In fact, they were only seeking for apology of the Court, expressing regrets for
not brining the correct position (with reference to the Corrigendum Notification dated 29.07.2019) to the notice of this Court and to drop further action,
if any.
It is quite evident that the attempt of the Review Petitioners is only to have a ""re-hearing"" of the matter, which is not permissible in exercise of the
power of review. The 'review power' can be invoked only when there is any 'error apparent on the face of record' and it is not a substitute for appeal
as made clear by the Apex Court in Meera Bhanja v. Nirmala Kumari Choudhury; {AIR 1995 SC 455} .The remedy of the Review Petitioner, if
aggrieved, is something else. We also find support from the rulings rendered by the Apex Court in Lily Thomas v. Union of India; {AIR 2000 SC
1650}, Ajit Kumar Rath v. State Of Orissa; {AIR 2000 SC 85}, Government of T.N. & Others v. Ananchu Asari & Others; {(2005) 2 SCC 332}.
As noted already, because of non-bringing of the 'Corrigendum Notification' dated 29.07.2019 to the notice of this Court and in making incorrect
submissions, much of the Court's time has already been wasted by the Petitioners, which could have been utilised for other fruitful purposes. Now, the
Review Petitioners virtually want to have a 're-hearing'. Such course and conduct of the Review Petitioners cannot but be deprecated. No
interference is possible and in the said circumstance, the review petitions are dismissed. We reluctantly refrain from imposing any cost upon the
Review Petitioners.