TaxTMI 
TaxTMI 
2021 (10) TMI 763
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....tioner's challenge in dismissing the petition on the ground that the petitioner would not be entitled for Tax Relief as its Tax liability, as required under Section 124(1)(d) of the Scheme, was not quantified as of 30.06.2019. 2. A brief statement of the facts leading to the Writ Petition No. 11190/2020 would be as follows. The petitioner filed belated service tax returns in Form ST-3 and also paid certain amounts after the respondents called upon the petitioner to produce records such as balance-sheet, P and L Account and other details. On 12.09.2018, the respondents registered an offence case against the petitioner in OS No. 31/2018-2019 approximating the petitioner's liability in a sum of Rs. 99,00,000/-, and they also issued a final reminder on 15.11.2018 to the petitioner calling for its reply. The respondents issued notice dated 09.12.2019 to the petitioner under section 73 of the Finance Act, 1994 read with section 174 of the Central Goods and Services Tax Act, 2017 to show cause as to why a sum of Rs. 6,53,93,365/- should not be taken as the taxable value for the period from April 2015 to June 2017 and an amount of Rs. 95,94,517/- should not be demanded and recovered as ....
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....9, should have considered the petitioner's declaration in Form SVLDR-1 accordingly. 4.3 After the show cause notice dated 09.12.2019, the petitioner, who had filed declaration in Form SVLDR-1 under the "enquiry/ investigation/ audit" category on 12.12.2019, represented before the adjudicating authority vide its letter dated 23.12.2019 stating that the petitioner would waive the right to be heard in person and the show cause notice may be adjudicated on merits with the available documents at the earliest because the petitioner proposed to file a declaration under the Scheme for tax relief in the 'arrears' category. In support of the submission, reliance is placed upon the adjudicating authority's order dated 30.12.2019. The petitioner, who had filed declaration in Form SVLDR-1 under the enquiry/investigation/audit category, could not have filed another declaration under the arrears category with the adjudication pending. 4.4 The stipulation that the liability shall be quantified before 30.06.2019 [which is necessary for Tax Relief under the enquiry/ investigation/ audit category as per the provisions of section 124(1)(a) of the Scheme] is not contemplated for Tax Relief under ....
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....ri. V. Raghuram emphasizes that if in the facts and circumstances of the case, even if it could be argued that a case for review on the ground of a mistake or error apparent on the records is not established, there must be review because "sufficient reasons" for review, as contemplated under the provisions of Order XLVII Rule 1 of CPC, is undeniably established in the facts and circumstances. Sri. V. Raghuram relies upon paragraph 90 of the decision of the Hon'ble Supreme Court in BCCI v. Netaji Cricket Club (2005) 4 Supreme Court Cases 741 and points out that the proposition as canvassed by him is reiterated by the Hon'ble Supreme Court in its latter decision in Perry Kansagara v. Smrithi Madan Kansagara (2019) 20 Supreme Court Cases 753. He relies on paragraph 90 in BCCI v. Netaji Cricket Club which reads as under: "Thus, a mistake on the part of the Court which would include a mistake in the nature of the undertaking may also call for a review of the order. An application for review would also be maintainable if there exists sufficient reason therefor. What would constitute sufficient reason would depend on the facts and circumstances of the case. The words "sufficient ....
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....d must be despite due diligence. In this regard, he relies upon paragraph 9 of the decision of the Hon'ble Supreme Court in Parison Devi and Others v. Sumitri Devi and others (1997) 8 Supreme Court Cases 715, which reads as under: "Under Order 47 Rule 1 CPC judgement may be open to review inter alia if there is a mistake or an error apparent on the face of the record. An error which is not self-evident and has to be detected by a process of reasoning, can hardly be said to be an error apparent on the face of the record justifying the Court to exercise its power of review under Order 47 rule 1 CPC. In exercise of the jurisdiction under Order 47 Rule 1 CPC it is not permissible for an erroneous decision to be "reheard and corrected". A review petition, it must be remembered has a limited purpose and cannot be allowed to be "an appeal in disguise". He also relies upon the decision of the Madras High Court in Shanmugam Servai v. Periyakaruppan Servai AIR 1996 Madras 411 wherein it is held that the expression, any other sufficient reason found in Order XLVII Rule 1of CPC, must be interpreted to mean a ground at least analogous to those grounds specified in such provision. Th....
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....: a. discovery of new and important matters or evidence which after the exercise of due diligence was not within the knowledge of the applicant; b. such important matter or evidence could not be produced by the applicant at the time when the decree was passed or order made; and c. on account of some mistake or error apparent on the face of record or any other sufficient reason. As regards the review of an order under Article 226 of the Constitution of India, it would be useful to refer to the decision of the Hon'ble Supreme Court in Aribam Tuleshwar Sharma v. Aribam Pishak Sharma AIR 1979 SC 1047 wherein it is held: "It is true as observed by this Court in Shivdeo Singh v. State of Punjab (AIR 1963 SC 1908) there is nothing in Article 226 of the Constitution to preclude a High Court from exercising the power of review which is inherent in every Court of plenary jurisdiction to prevent miscarriage of justice or to correct grave and palpable errors committed by it. But, there are definitive limits to the exercise of the power of review. The power of review may be exercised on the discovery of new and important matter of evidence which, after the exercise....
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.... the Court's attention is not drawn by a learned counsel to a material statutory provision which would have a material bearing on the decision, sufficient reason for review is established. In support of this proposition, reliance is placed upon the decision of the Hon'ble Supreme Court Girdhari Lal Gupta v. DH Mehta and another supra. 17. The Hon'ble Supreme Court has reiterated the proposition underlined in Girdhari Lal supra in Lily Thomas v. Union of India (2000) 6 Supreme Court Cases 224 by reference to its subsequent decision in Northern India Caterers (India) Ltd. v. Lt. Governor (1980) 2 Supreme Court Cases 167 wherein it is held thus: "It is well settled that a party is not entitled to seek a review of a judgment delivered by this Court merely for the purpose of a rehearing and a fresh decision of the case. The normal principle is that a judgment pronounced by the Court is final, and departure from that principle is justified only when circumstances of a substantial and compelling character make it necessary to do so: Sajjan Singh v. State of Rajasthan. For instance, if the attention of the Court is not drawn to a material statutory provision during the original....
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.... error apparent on the record as also due diligence and best efforts and satisfy other conditions required under order XLVII Rule 1 of CPC. It is recognized that the difficulty is not in stating the proposition, but in applying the same. 19. The petitioner's intention to claim the benefit of Tax Relief under the Arrears Category, even before the last date for making a declaration under the scheme, is established by the specific stand taken before the adjudicating authority. This statement is part of Annexure - F to the writ petition, but the significance of this argument is not put to test by canvassing the same. The material was available on record is not articulated as a ground for review even in the pleadings. It is argued that the learned counsel made a mistake in not putting out such ground for consideration, and because of such mistake the learned counsel also did not argue the significance of the provisions of the Finance Act, 2019 and Scheme on the question of quantification of the petitioner's liability upon filing of belated Form ST-3 Return for the purposes of the Scheme. 20. It is very obvious that the writ petition is dismissed without considering the material pr....