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TMI Blog2022 (5) TMI 1020X X X X Extracts X X X X X X X X Extracts X X X X ..... willful concealment, in the Review Application such a plea is sought to be raised. It is not as if that such a plea was not available at the time filing of the Writ Petition. The order under review would clearly indicate that intentional and willful non-disclosure of crucial facts can be inferred from the self-declaration made in the web-portal - there are no grounds to interfere with the order impugned in the review - the Review application is dismissed. - Review I.A. No.1 of 2021 In W.P.No.10350 of 2020 - - - Dated:- 6-5-2022 - Hon ble Sri Justice C. Praveen Kumar And Hon ble Sri Justice B.Krishna Mohan For the Petitioner : P S P Suresh Kumar For the Respondent : GP For Commercial Tax (AP) ORDER: PER HON BLE SRI JUSTICE B.KRISHNA MOHAN 1) The present application is filed under Order XLVII Rules 1 and 2 read with Section 114 of Code of Civil Procedure, 1908, seeking review of the Order, dated 11.11.2020, passed in W.P. No. 10350 of 2020, wherein this Court dismissed the Writ Petition confirming the Order of the Joint Commissioner (ST), Appellate Authority under GST Act, Vijayawada, who in turn upheld the Order of the Assistant Commissioner (ST), ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing the appeal on 12.02.2020. Against which, the above writ petition was filed. 7) On considering the matter on merits, this Court declared that for the purpose of financial year 2017-2018 under GST regime is concerned, the preceding financial year would be 2016-2017 under the VAT regime for the purpose of collection of tax under the GST Act, 2017 and held that the petitioner is not entitled for the benefit under the composite scheme for collection of taxes and penalty and confirmed the findings of the authorities concerned, vide its order dated 11.11.2020. The said order of the writ petition dated 11.11.2020 is now sought to be reviewed by the petitioner. 8) The learned counsel for the petitioner submits that the respondents imposed 100% penalty invoking Section 74 of the GST Act instead of invoking Section 73 of the GST Act by imposing penalty of lesser percentage in the normal circumstances other than in the case of fraud or willful intention to defraud the revenue. As per Section 74 of the said Act the petitioner had to pay equal amount of tax towards penalty on the finding of willful intention to defraud the revenue. Section 10(5) of the said Act deals with penalty and t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is is amply evident from the Explanation to Rule 1 of Order 47 which states that the fact that the decision on a question of law on which the judgment of the court is based has been reversed or modified by the subsequent decision of a superior court in any other case, shall not be a ground for the review of such judgment. Where the order in question is appealable the aggrieved party has adequate and efficacious remedy and the court should exercise the power to review its order with the greatest circumspection. This Court in Thungabhadra Industries Ltd. v. Govt. of A.P. [(1964) 5 SCR 174 : AIR 1964 SC 1372] held as follows: (SCR p. 186) [T]here is a distinction which is real, though it might not always be capable of exposition, between a mere erroneous decision and a decision which could be characterised as vitiated by error apparent . A review is by no means an appeal in disguise whereby an erroneous decision is reheard and corrected, but lies only for patent error. where without any elaborate argument one could point to the error and say here is a substantial point of law which stares one in the face, and there could reasonably be no two opinions entertained about it, a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at the time of initial decision. The happening of some subsequent event or development cannot be taken note of for declaring the initial order/decision as vitiated by an error apparent. viii. Mere discovery of new or important matter or evidence is not sufficient ground for review. The party 33 seeking review has also to show that such matter or evidence was not within its knowledge and even after the exercise of due diligence, the same could not be produced before the court/tribunal earlier. 14) Further, the Hon ble Supreme Court in Ram Sahu (dead) through LRs and others V. Vinod Kumar Rawat and others 2020 SCC Online SC 896 , reviewed the entire case law on the subject and held in paragraph No.34 as under: 34. To appreciate the scope of review, it would be proper for this Court to discuss the object and ambit of Section 114 CPC as the same is a substantive provision for review when a person considering himself aggrieved either by a decree or by an order of Court from which appeal is allowed but no appeal is preferred or where there is no provision for appeal against an order and decree, may apply for review of the decree or order as the case may be in the Court ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... roceeding cannot be equated with the original hearing of the case, and the finality of the judgment delivered by the Court will not be reconsidered except where a glaring omission or patent mistake or like grave error has crept in earlier by judicial fallibility . 16) The Division Bench after considering all the earlier precedents on the subject, summarised the same as follows: 1) A review proceeding cannot be equated with the original hearing of the case, and the finality of the judgment delivered by the Court will not be reconsidered except where a glaring omission or patent mistake or like grave error has crept in earlier by judicial fallibility . 2) When a new or important matter or evidence is discovered which was not within the knowledge of the person seeking review at the time of hearing the case earlier or which could not be produced by him when the order was made. 3) The normal principle is that a judgment pronounced by the Court is final, and departure from the principle is justified only when circumstances, of a substantial and compelling character, make it necessary to do so. 4) Review is not a rehearing of an original matter. The power of review can ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he revenue. 19) The same was seriously opposed by the learned Government Pleader mainly on the ground that, in a review, even if the order is erroneous, the Court cannot review the same unless an error is apparent on record, which is not so in the instant case. Even otherwise, he submits that the Bench which heard the Writ Petition dealt with these aspects and came to a conclusion and if the Petitioner is aggrieved by the same, remedy lies elsewhere but not by way of a Review. 20) In order to appreciate the same, it would be used to refer to arguments advanced in the Writ Petition, which are referred to in paragraph no. 2 of the Order, as under: According to him, the respondents having accepted the option exercised by the petitioner in the web portal and having permitted him to pay tax at 1% of the total turnover in terms of the composite scheme, cannot now turn around and reject the option exercised and consequently direct the petitioner to pay GST as per the regular rates. He would further plead that a reading of Section 10(1) of the Act, does not anywhere prescribe inclusion of VAT regime for the purpose of deciding the tax to be paid under Section 10(1) of GST Act. I ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d under sub-section (1). 12. It may be true that the petitioner had paid GST under a composite scheme as per the option exercised in the web portal, for nearly four quarters, but, the option exercised by the petitioner was self-declaratory, which requires verification. Therefore, the argument of the learned Government Pleader that it took sometime for the authorities to examine the options exercised by all the taxpayers in the State cannot be brushed aside. Merely because the petitioner has exercised an option (which should be a correct one) and that it took time for the authorities to verify the genuinity or otherwise of the option exercised, cannot stop the respondents from directing the petitioner to pay tax as regulated under the provisions of the GST Act, if the option exercised was found to be incorrect. 14. Therefore, the argument that the turnover in the financial year starting from 1.7.2017 has only to be taken into consideration ignoring the previous turn over in the VAT regime does not sound to reason, because when the legislature at more than one place used the word preceding financial year , it would only mean that as on 1.7.2017, the turnover of the previou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... al year does not exceed Rs.50 lakhs . Therefore, to fix a parameter for extending the benefits under the scheme and for payment of less tax in case of manufacturers and for those engaged in making supplies, the legislature thought it fit to take into account the turnover of the previous financial year. In so far as the financial year 2017-2018 under GST regime is concerned, the preceding financial year would be 2016-2017 under the VAT regime. The collection of tax under the GST Act, 2017 is not in addition to the provisions of VAT, but, this is 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. This has been introduced to meet the requirements under the recommendations of the GST council, in which all the States and Union territories are the stakeholders. 24) From the above, it is clear that the argument that was advanced at the time of hearing of the Writ Petition was with regard to inclusion of VAT regime for the purpose of deciding the tax to be paid under Section 10(1) of GST Act. In the Review Petition, it is now urged that Section 10 encompasses Section 73 and 74 of ..... X X X X Extracts X X X X X X X X Extracts X X X X
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