RECTIFICATION OF ERROR ON THE FACE OF RECORD

[Sadanand Bulbule]

Section 75[7] of the CGST Act reads as under:

(7) The amount of tax, interest and penalty demanded in the order shall not be in excess of the amount specified in the notice and no demand shall be confirmed on the grounds other than the grounds specified in the notice.

Legal position being so. some authorities are issuing notices under Section 161 proposing to rectify error on the face of the adjudication order/records to demand additional tax, interest and penalty on the issue which is admittedly not covered by the SCN under Section 73/74 of the Act.

In my considered opinion, such SCN issued under Section 161 is hit by lack of jurisdiction under Section 75(7) and such SCN is unsustainable in the eyes of law. So in the absence of any error on the face of records, the AO has no other option but to rescind such SCN issued under Section 161.

Experts to comment.

[KASTURI SETHI]

Sh. Sadanand Bulbule Ji,

Sir, The following restrictions are imposed on any authority who can rectify any error :-

(i) The error must be apparent on the face of the record i.e. it must be self-evident and must not fall in the category of a debatable error.

(ii) The rectification of error must not amount to 'review the order'' in any way/ any guise .' Only Supreme Court can review its own order.

(iii) The principles of natural justice have to be followed by any authority who rectifies any error. See A.P. High Court Order S.P.Y. AGRO INDUSTRIES Versus UNION OF INDIA - 2022 (5) TMI 1074 - ANDHRA PRADESH HIGH COURT

(iv) Para no. 2 of your query indicates that the authority has gone beyond the scope of rectification.

(v) If the authority has issued SCN under Section 73 or 74 for the purpose of rectification of an error, the SCN cannot be withdrawn. It has to be adjudicated. Such Adjudication (Rectification) Order would amount to review its own Order.

These are my personal views.

[Shilpi Jain]

Even if there is a rectification done, it cannot be done on the guise of some error which was not part of SCN itself. I.e. an error done in SCN cannot be rectified in the order which is clearly going beyond SCN.

[KASTURI SETHI]

Such rectification of an error amounts to going beyond SCN as well as Order-in-Original both. If it is beyond the scope of the SCN, then it is also beyond the scope of the Order-in-Original. 

[YAGAY andSUN]

Section 75(7) of the CGST Act clearly restricts any adjudication order from demanding tax, interest, or penalty in excess of, or on grounds different from, those specified in the Show Cause Notice (SCN). In this legal framework, any subsequent notice issued under Section 161 attempting to rectify or introduce new grounds or raise additional demand not covered in the original SCN under Section 73 or 74 is clearly without jurisdiction and contrary to law. The power under Section 161 is confined strictly to rectifying errors apparent on the face of the record, and it cannot be used as a tool to review or reassess the merits of the original adjudication. Courts have consistently held that rectification cannot be a substitute for appeal or reassessment, especially where the issue is not self-evident or is debatable.

When the adjudicating authority issues an SCN under the guise of Section 161 to raise fresh demands on matters not included in the original SCN, it clearly violates the safeguards provided under Section 75(7). Such action amounts to a backdoor review of the earlier order, which is not permissible in law. The Andhra Pradesh High Court in S.P.Y. Agro Industries v. Union of India (2022 (5) TMI 1074 - ANDHRA PRADESH HIGH COURT) has affirmed that any rectification must comply with principles of natural justice and must not cross the boundary of what is self-evident. Hence, any attempt by the authority to reopen concluded matters or to raise fresh demands without a fresh valid SCN under proper legal authority is unsustainable and is liable to be challenged and set aside.

AI Summary

Legal Experts Debate Limits of GST Adjudication Order Corrections Under Section 75(7) and Procedural Constraints A discussion forum explores legal restrictions on rectifying errors in GST adjudication orders. Participants argue that Section 75(7) prohibits authorities from issuing new show cause notices under Section 161 to demand additional tax beyond the original notice. The key principles include: errors must be self-evident, cannot amount to reviewing an order, must follow natural justice, and cannot introduce new grounds not in the original notice. Experts unanimously conclude that such rectification attempts are jurisdictionally invalid and contrary to law.