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TMI Blog2024 (5) TMIX X X X Extracts X X X X X X X X Extracts X X X X ..... department was bound to give I.T.C. benefit to the petitioner, even though it has been revealed later on the firm was non-existent and it could not have made any actual supplies - This Court found that the appellate authority had passed the impugned order after taking into consideration the facts and circumstances of the case and the material available on record. Review petition - HELD THAT:- The Officers of Special Investigating Branch had conducted a survey of premises of the suppliers from whom the petitioner claims to have received inward supplies and they found that the three firms from which the petitioner claims to have received supplies, namely M/s Ridhi Sidhi Enterprises, M/s Siddharth Trading Company and M/s Satvik Enterprises, were non-existent and bogus and the invoices had been issued without any actual supply of goods, upon which the petitioner had fraudulently taken benefit of Input Tax Credit. The Appellate Authority found that the petitioner had produced 04 goods receipts issued by Goyal Goods Carry Corporation, which were on different formats and the GSTIN mentioned on the receipts was found to be not valid, as per the information available on the common portal - ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f Rs. 10,12,491/- without any actual supply of goods, on the basis of the fake invoice issued by the aforesaid three non-existence bogus firms. The Special Investigation Branch found that the petitioner had knowingly claimed excessive amount towards I.T.C. in his GSTR-2A also and had adjusted the same in the tax payable by him. Thus, the petitioner claimed a total of Rs. 15,93,491/- I.T.C. in violation of the provisions of law. 4. The adjudicating authority issued a notice under Section 74 in reply to which the petitioner submitted his explanation alongwith the evidence, stating that it had received inward supplies from M/s Ridhi Sidhi Enterprises, M/s Siddhartha Trading Company and M/s Satvik Enterprises and in support of its claim of actual receipt of inward supplies, the petitioner had submitted invoices, copies of GR (goods receipts), e-way bill, ledger and bank statements of the firms, evidence of transaction of amounts through RTGS and evidence of physical receipts of goods. The inward supplies received by the petitioner were entered in the stock register. 5. The adjudicating authority did not accept the explanation of the petitioner because the Special Investigation Branch, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aving valid GSTIN 4 registration when the petitioner had received the supplies. Merely because GSTIN registration of the firm was cancelled subsequently at their own requests, the petitioner cannot be penalized for the same. As per Section 16 of the GST Act, 2017, the petitioner was merely required to be in possession of a tax invoice or debit note issued by the supplier, receipt of goods and actual payment of tax to the Government. As per learned counsel for the petitioner the requirements of Section 16 of the GST Act, 2017 and Rule 36 of GST Rules 2017 had been fulfilled by the petitioner by furnishing the aforesaid requisite documents. 8. While deciding the Writ Petition, this Court had held that Section 16 (2) (b) of the GST Act provides that no registered person shall be entitled to the credit of any input tax in respect of any supply of goods unless he has received the goods. Received the goods means the person claiming input tax credit must have actually received the goods. Where a person merely produces documents mentioned in Rule 36 regarding receipt of goods without actual receipt of any goods and it is established that the transaction of goods was merely paper transactio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y the respondent at the time of hearing and while passing the order as no survey has been conducted by the department on the place of business of the supplier firms, whether it was before cancellation or after cancellation . 11. It has also been contended in the review petition that Order 47 Rule 1 C.P.C. provides for filing of an application for review of a judgment on the basis of discovery of important matter or evidence, which after exercise of due diligence, was not within the knowledge of the petitioner. The petitioner has filed e-stamp affidavit of the transporter to prove bona fide transaction and the movement of goods. 12. It would be appropriate to have a look at the provision contained in Order XLVII, Rule 1 (1) C.P.C. before proceeding any further: - Application for review of judgment . (1) Any person considering himself aggrieved (a) by a decree or order from which an appeal is allowed, but from which no appeal has been preferred, (b) by a decree or order from which no appeal is allowed, or (c)by a decision on a reference from a Court of Small Causes, and who, from the discovery of new and important matter or evidence which, after the exercise of due diligence, was not ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tant resort to it is proper only where a glaring omission or patent mistake or like grave error has crept in earlier by judicial fallibility. The present stage is not a virgin ground but review of an earlier order which has the normal feature of finality. (emphasis in original) 20. In Parsion Devi v. Sumitri Devi (1997) 8 SCC 715, stating that an error that is not self-evident and the one that has to be detected by the process of reasoning, cannot be described as an error apparent on the face of the record for the Court to exercise the powers of review, this Court held as under: 7. It is well settled that review proceedings have to be strictly confined to the ambit and scope of Order 47 Rule 1 CPC. In Thungabhadra Industries Ltd. v. Govt. of A.P. (1964) 5 SCR 174 this Court opined: 11. What, however, we are now concerned with is whether the statement in the order of September 1959 that the case did not involve any substantial question of law is an error apparent on the face of the record . The fact that on the earlier occasion the Court held on an identical state of facts that a substantial question of law arose would not per se be conclusive, for the earlier order itself might be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... The real difficulty with reference to this matter, however, is not so much in the statement of the principle as in its application to the facts of a particular case. When does an error cease to be mere error, and become an error apparent on the face of the record? The learned counsel on either side were unable to suggest any clear-cut rule by which the boundary between the two classes of errors could be demarcated. 17. The aforesaid observations were made by the Hon ble Supreme Court while discussing the scope of a Writ of Certiorari, as paragraph 28 of the judgment, from where the aforesaid passage has been extracted, begins with the words 8. It may therefore be taken as settled that a writ of certiorari could be issued to correct an error of law. But it Although the judgment in Hari Vishnu Kamath (Supra) is not relevant for deciding a review petition, it supports the approach adopted this Court while deciding the writ Petition which was filed seeking issuance of a Writ of Certiorari. 18. In S. Bagirathi Ammal v. Palani Roman Catholic Mission (2009) 10 SCC 464, the Hon ble Supreme Court held that: - 12. An error contemplated under the Rule must be such which is apparent on the fa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lently taken benefit of Input Tax Credit. The Appellate Authority found that the petitioner had produced 04 goods receipts issued by Goyal Goods Carry Corporation, which were on different formats and the GSTIN mentioned on the receipts was found to be not valid, as per the information available on the common portal. The mobile number printed on the goods receipts was found to be in use of some lady living at Kasganj and it was not of any transport Company. No material was placed by the petitioner to rebut the aforesaid factual findings based on the survey of the premises of the supplier firms made by officials of Special Investigating Branch. While examining the validity of the aforesaid findings, this Court found that the findings were based on sufficient material and did not require any interference in exercise of writ jurisdiction of this Court. In these circumstances, the allegation leveled in the review petition that this Court has blindly believed the stand of the revenue, is also without any substance. 21. Although a litigant is well within its right to challenge the validity of any order in accordance with the law and in case the order suffers from an error which is apparen ..... X X X X Extracts X X X X X X X X Extracts X X X X
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