TaxTMI 
TaxTMI 
2022 (5) TMI 1020
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....and the learned counsel for the respondents. 4) The grounds for review are that the imposition of penalty by the authorities is not automatic and the same can be imposed only when there is a fraud or willful intention to defraud the revenue and there is no finding in the original rejection order dated 19.09.2018 to the effect that the petitioner opted for composite scheme with a fraudulent intention to defraud the revenue and the same was confirmed in the appeal vide order dated 12.02.2020. 5) But in the writ petition, a comprehensive relief was sought challenging the proceedings of the 3rd respondent as confirmed by the 2nd respondent vide order dated 12.02.2020 wherein the petitioner was levied with tax and imposition of penalty with interest. 6) To touch the facts in brief, the petitioner was a Proprietrix doing business in furniture with necessary permission and licenses from the concerned Departments including erstwhile Sales Tax Department. After GST Act came into force the petitioner became the registered dealer with GST Registration No.37AABPA9728J1ZJ with effect from 01.07.2017. The petitioner opted for payment of tax under composite scheme under Section 10(1) of ....
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....uction of the same under Section 73 of the Act, for which this review petition is filed. 9) The learned counsel for the petitioner also relies upon the decision of the Hon'ble Apex Court reported in 2007 (10) SCC 357 2007 (10) SCC 357 "Continental Foundation Joint venture Holding V. Commissioner of Central Excise", in Paras 11, 12, 14 and 15 which arose under the provisions of Central Excise Act, 1944, in support of his plea. 10) On the other hand, the learned Government Pleader would submit that the authorities rightly rejected the claim of the petitioner under the composite scheme and levied the tax and penalty with interest under Section 74 of the GST Act. According to him, on considering the matter on merits this Court dismissed the Writ Petition in toto and as such it cannot be reviewed basing on the grounds raised by the petitioner. 11) Before dealing with the case on hand, it would be appropriate to refer to the authorities on the subject, namely, scope of review by the High Court in an application filed under Order XLVII Rules 1 and 2 read with Section 114 of Code of Civil Procedure, 1908. 12) In Haridas Das v. Usha Rani Banik (2006) 4 SCC 78, the Hon'ble Suprem....
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....ng the original application filed by the appellant, there was no justification for the Tribunal to review its order and allowed the revision of the appellant. Some of the observations made in are extracted below: "40. The learned counsel for the State also pointed out that there was no necessity whatsoever on the part of the Tribunal to review its own judgment. Even after the microscopic examination of the judgment of the Tribunal we could not find a single reason in the whole judgment as to how the review was justified and for what reasons. No apparent error on the face of the record was pointed, nor was it discussed. Thereby the Tribunal sat as an appellate authority over its own judgment. This was completely impermissible and we agree with the High Court (Sinha, J.) that the Tribunal has travelled out of its jurisdiction to write a second order in the name of reviewing its own judgment. In fact the learned counsel for the appellant did not address us on this very vital aspect." The principles which can be culled out from the abovenoted judgments are: i. The power of the Tribunal to review its order/decision under Section 22(3)(f) of the Act is akin/ana....
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....n any condition as the condition precedent in exercise of power of review nor the said Section imposed any prohibition on the Court for exercising its power to review its decision. However, an order can be reviewed by a Court only on the prescribed grounds mentioned in Order 47 Rule 1 CPC, which has been elaborately discussed hereinabove. An application for review is more restricted than that of an appeal and the Court of review has limited jurisdiction as to the definite limit mentioned in Order 47 Rule 1 CPC itself. The powers of review cannot be exercised as an inherent power nor can an appellate power can be exercised in the guise of power of review." 15) This Court in Ku. A. Prabhavathi, W.G. Vs. The State of A.P. Revenue Department [I.A.No.6 of 2018 in W.P.No.16450 of 2004] [decided on 08.11.2019]], after referring to judgments in T.D. Dayal v. Madupu Harinarayana (2013) 6 ALT 681 (DB) and Mohammadiya Educational Society v. Union of India, held as under: "Review, literally and judicially, means re-examination or reconsideration. The basic philosophy inherent in it is the universal acceptance of human fallibility. Yet, in the realm of law, Courts lean strongly in f....
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....petition has a limited purpose and cannot be allowed to be "an appeal in disguise". 6) 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 exercise of the power of review. 7) There is a clear distinction between an "erroneous decision" and "an error apparent on the face of the record". While the first can be corrected by the higher forum, the latter only can be corrected by exercise of the review jurisdiction. So, the earlier order cannot be reviewed unless the Court is satisfied that material error, manifest on the face of the order, undermines its soundness or results in miscarriage of justice. 8) If the judgment is vitiated by an error apparent on the face of the record, in the sense that it is evident on a mere look at the record without a long-drawn process of reasoning, a review application is maintainable. If there is a serious irregularity in the proceeding, such as violation of the principles of natural justice, a review application can be entertained." 17) From the judgments referred to above, it is clear that the scope of reviewi....
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....inancial year" has no relevance for the taxes paid for the financial year 2017-2018. He further pleads that even if the turn over from 1.7.2017 is taken into consideration, the petitioner's turn over would be below Rs.1 crore and hence the word 'preceding financial year' appearing in Section 10(1) would be from financial year, after the GST regime came into force and not otherwise. He took us through the provisions of GST Act in support of his plea." 21) Dealing with the arguments advanced, the Bench of this Court after referring to the Judgment on the subject dealt with the contentions raised in paragraphs Nos. 7, 8, 9, 9, and 10 to 12 of the Judgment and ultimately negated the plea of the Petitioner holding that the collection of tax under GST Act, 2017, is not in addition to the provisions of the VAT but this being introduced as a substitute to VAT Act to deal with both goods and services, so as to maintain uniformity across the length and breadth of the country and, accordingly, confirmed the order of the 2nd Respondent. 22) It would be appropriate to extract paragraph No. 7, where an issue was framed. It is now to be seen whether the authorities were right in di....
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....under GST regime, provided the self-declarations made are correct. It is also to be noted that if during the course of business in subsequent year, the turnover comes down, such a declaration can be made seeking reduction of tax liability. But, the turnover of the previous year declared under a different tax collection process cannot be eschewed for fixing the liability under a new tax collection process. As stated earlier, by switching over from VAT to GST system, tax payment/collection on intra state supply of goods is being continued, but, however, in a different mode, thereby avoiding inconvenience and hardship to one and all. 15. In the instant case, the dispute in so far as interpretation of the word 'previous financial year' arose only for the financial year 2017-2018, as the GST regime commenced from 1.7.2017. If the intention of the legislature was that the turnover of the financial year under GST regime is only to be taken into consideration, then there would have been a clarification of the word 'preceding financial year'. Section 10 (1) of the Act would not carry any meaning if such an interpretation, as sought by the petitioner, is given, namely, the turnover ....