2023 (11) TMI 54 - SC - VAT / Sales Tax

Supreme Court rejects review petitions on VAT dues priority under Section 53 waterfall mechanism in insolvency proceedings

SANJAY KUMAR AGARWAL Versus STATE TAX OFFICER (1) & ANR.

The SC dismissed review petitions challenging a judgment regarding priority of dues recovery under the waterfall mechanism. Review petitioners argued the ... Recovery of dues - first charge over the property of the Corporate Debtor - Waterfall mechanism - prevalence of Section 48 of the Gujarat Value Added Tax 2003 over Section 53 of the Insolvency and Bankruptcy Code 2016 - whether the Review Petitioners have been able to make out any case within the ambit of Order XLVII of Supreme Court Rules, read with Order XLVII of CPC, for reviewing the impugned judgment? HELD THAT:- It is well settled proposition of law that a co-ordinate Bench cannot comment upon the discretion exercised or judgment rendered by another co-ordinate Bench of the same strength. If a Bench does not accept as correct the decision on a question of law of another Bench of equal strength, the only proper course to adopt would be to refer the matter to the larger Bench, for authoritative decision, otherwise the law would be thrown into the state of uncertainty by reason of conflicting decisions. Apart from the well-settled legal position that a co-ordinate Bench cannot comment upon the judgment rendered by another co-ordinate Bench of equal strength and that subsequent decision or a judgment of a co-ordinate Bench or larger Bench by itself cannot be regarded as a ground for review, the submissions made by the learned Counsels for the Review Petitioners that the court in the impugned decision had failed to consider the waterfall mechanism as contained in Section 53 and failed to consider other provisions of IBC, are factually incorrect - As evident from the bare reading of the impugned judgment, the Court had considered not only the Waterfall mechanism under Section 53 of IBC but also the other provisions of the IBC for deciding the priority for the purpose of distributing the proceeds from the sale as liquidation assets. The well-considered judgment sought to be reviewed does not fall within the scope and ambit of Review. The learned Counsels for the Review Petitioners have failed to make out any mistake or error apparent on the face of record in the impugned judgment, and have failed to bring the case within the parameters laid down by this Court in various decision for reviewing the impugned judgment. All the Review Petitions are dismissed. Issues Involved:1. Review of the common judgment and order dated 06.09.2022.2. Interpretation of Section 48 of the GVAT Act and Section 53 of the IBC.3. Scope and grounds for review under Order XLVII of CPC and Supreme Court Rules.Summary:1. Review of the Common Judgment and Order Dated 06.09.2022:The batch of five Review Petitions seeks to review the common Judgment and Order dated 06.09.2022 passed by the Supreme Court in Civil Appeal No. 1661 of 2020 and Civil Appeal No. 2568 of 2020. The main issue was whether Section 48 of the GVAT Act can prevail over Section 53 of the IBC. The Supreme Court had allowed the appeals, holding that Section 48 of the GVAT Act is not contrary to or inconsistent with Section 53 of the IBC, and that the State is a secured creditor under the GVAT Act.2. Interpretation of Section 48 of the GVAT Act and Section 53 of the IBC:The Supreme Court, in its judgment dated 06.09.2022, held that Section 48 of the GVAT Act is not contrary to or inconsistent with Section 53 of the IBC. The court stated that under Section 53(l)(b)(ii) of the IBC, the debts owed to a secured creditor, which include the State under the GVAT Act, rank equally with other specified debts. The court concluded that the NCLAT erred in its observation that Section 53 of the IBC overrides Section 48 of the GVAT Act.3. Scope and Grounds for Review under Order XLVII of CPC and Supreme Court Rules:The Supreme Court reiterated the well-settled law on the scope of review. A judgment may be open to review if there is a mistake or an error apparent on the face of the record. However, a review cannot be used for re-hearing and fresh decision of the case. The court emphasized that an error which is not self-evident and requires a process of reasoning cannot justify a review. The review petition cannot be an appeal in disguise and cannot be used to reargue questions already decided.Analysis:The Supreme Court examined whether the Review Petitioners made out any case within the ambit of Order XLVII of Supreme Court Rules, read with Order XLVII of CPC, for reviewing the impugned judgment. The court found that the Review Petitioners failed to make out any mistake or error apparent on the face of the record. The court also noted that the impugned judgment had considered the waterfall mechanism under Section 53 of IBC and other provisions of IBC. The court held that a co-ordinate Bench cannot comment upon the judgment rendered by another co-ordinate Bench of equal strength, and that subsequent decision or a judgment of a co-ordinate Bench or larger Bench by itself cannot be regarded as a ground for review.Conclusion:The Supreme Court dismissed all the Review Petitions, concluding that the well-considered judgment sought to be reviewed does not fall within the scope and ambit of Review. The Review Petitioners failed to bring the case within the parameters laid down for reviewing the impugned judgment.