2020 (2) TMI 743 - HC - GST

Review petition - Appointment of 'Proper Officers' without any notification in the gazette as envisaged under Section 167 read with Section 168 of the Central Goods and Services Tax Act, 2017 - Sustainability of Annexure P/2 Gazette Notification dated 01.07.2017 - Annexure P/1 Circular dated 05.07.2017 - rectification of mistake - error apparent on the face of record - HELD THAT - After the hearing held on 16.10.2019, they were taken up reserving judgment. In the course of working up the position, this Court came across a 'Corrigendum Notification dated 29.07.2019' published in the official Gazette (as noted in paragraph 21 of the judgment) whereby the mistake occurred in Annexure P/2 Notification dated 01.07.2017 (to the effect that the said Notification was issued by the Board) was corrected as issued 'by the Government'. The contention raised by the Respondents as to the circumstances under which the appointment of Proper Officers in different parts of the country is necessitated; the contention that the scope and applicability of Section 6 of the CGST Act is more with reference to 'assessment', which is not the purpose of appointing Proper Officers in different parts of the country conferring power to detect mischief/foul-play (wherever that is committed by unscrupulous assessees) and the specific contention that if at all there is initiation of simultaneous proceedings by two different officers in respect of the same cause of action, it will always be open for the assessee to bring it to the notice of the officer who has taken parallel action to avoid parallel proceedings, have been upheld. Since this Court has upheld that above contentions of the Respondents, repelling the contentions raised by the Writ Petitioners to the contrary, there is no error apparent on the face of record, to invoke the power of review. It is quite evident that the attempt of the Review Petitioners is only to have a re-hearing of the matter, which is not permissible in exercise of the power of review. The 'review power' can be invoked only when there is any 'error apparent on the face of record' and it is not a substitute for appeal as made clear - because of non-bringing of the 'Corrigendum Notification' dated 29.07.2019 to the notice of this Court and in making incorrect submissions, much of the Court's time has already been wasted by the Petitioners, which could have been utilised for other fruitful purposes. Petition dismissed.

Summary

Issues Involved:
1. Sustainability of Annexure P/2 Gazette Notification dated 01.07.2017.
2. Validity of Annexure P/1 Circular dated 05.07.2017 regarding appointment of Proper Officers.
3. Plurality of Proper Officers appointed throughout India.

Detailed Analysis:

1. Sustainability of Annexure P/2 Gazette Notification dated 01.07.2017:
The Petitioners challenged the Annexure P/2 Gazette Notification dated 01.07.2017, arguing it was not issued by the Central Government but by the Central Board of Indirect Taxes and Customs. The Court noted that a corrigendum notification dated 29.07.2019 corrected the mistake, clarifying that the notification was indeed issued by the Central Government, thus answering this question against the Petitioners. The Court found no error in the corrigendum and upheld the notification's validity.

2. Validity of Annexure P/1 Circular dated 05.07.2017 regarding appointment of Proper Officers:
The Petitioners contended that the appointment of Proper Officers via Annexure P/1 Circular without a gazette notification violated Sections 167 and 168 of the CGST Act. The Court observed that Section 167 requires a gazette notification only for delegation of power to external entities, not for assigning functions to existing officers. The Court upheld the Respondents' argument that Annexure P/1 Circular was an assignment of functions within the scope of Section 168, not a delegation of power, and thus did not require a gazette notification.

3. Plurality of Proper Officers appointed throughout India:
The Petitioners argued that the CGST Act does not permit the appointment of multiple Proper Officers across India, asserting that this practice leads to harassment and violates the statutory scheme of 'one assessee, one subject matter, one Proper Officer.' The Court found that the necessity to appoint multiple Proper Officers was justified to address issues like issuance of fake bills and tax evasion. The Court upheld the Respondents' contention that Section 6(2)(b) of the CGST Act pertains to assessment and does not restrict the appointment of multiple Proper Officers for enforcement purposes. The Court ruled that the appointment of multiple Proper Officers was constitutional and necessary for effective tax administration.

Conclusion:
The Court dismissed the review petitions, concluding that there was no error apparent on the face of the record. The Court emphasized that the review power is not a substitute for an appeal and cannot be used for re-hearing the matter. The Court also noted that the Petitioners' failure to bring the corrigendum notification to the Court's notice earlier had already wasted significant judicial time. Consequently, the review petitions were dismissed without imposing costs on the Petitioners.