CAN SMR AUTHORITY MONITOR THE ADJUDICATION ORDER?

[Sadanand Bulbule]

Dear experts

1] The adjudication process under Section 73 or 74 of the CGST Act is supposed to be concluded by not only the authorised Proper Officer but also by an independent authority. It means, such Proper Officer is legally not to be influenced by the higher authorities in any manner so that such adjudication order is passed in a free and fair manner.

2] However in some States, there are official instructions via Circular to monitor the adjudication process by the Revisional authority appointed under Section 108 of the CGST Act. And only after the "green signal" by such revisional authority, adjudication orders see the sunlight. In case there is " red signal", no orders would come out so easily. Surprisingly such monitoring system instead of boosting the legality of the adjudication process/revenue under Section 73 or 74, there is strong apprehension of generating force on the Proper Officers to saddle tax liability without caring for the legal consequences.

3] The vital question here is, can the revisional authority under Section 108 be authorised to officially monitor the adjudication process/orders/decisions and direct the Proper Officer to conclude the adjudication under Section 73 or 74 in a specific wishful manner?

4]. Can such administrative instructions over-rule the statutory provisions/judicial rulings?

5] What is the settled legal position on this situation?

I am of the considered opinion that, the revisional authority is not supposed to see the adjudication process, much less monitoring it.

Experts to throw light on this.

AI Summary

Revisional oversight of adjudication undermines independent quasi-judicial decisionmaking and risks administrative interference in tax orders.
The text addresses whether a revisional authority may monitor or condition adjudication of tax demands, asserting that adjudication requires an independent application of mind by the Proper Officer and that revisional power is a corrective jurisdiction exercisable after an order is passed when it is erroneous and prejudicial to revenue. It argues that pre decision monitoring by revisional authorities or circulars directing oversight intrudes on quasi judicial independence, risks administrative influence on fact finding and reasoning, and should be resisted through representations or legal challenge while preserving principles of natural justice.