Lawyers To Ensure Dignity Of Court Even When Challenging Its Order: Allahabad High Court Deprecates Disrespectful Drafting Of Review Application

The Allahabad High Court has deprecated the practice of disrespectful drafting of review applications which lower the dignity of the Court.

While hearing a review application against his earlier order, Justice Subhash Vidyarthi observed,

“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 apparent on the face of the record, the litigant would be well within its right to say so, but while assailing the orders passed by the Constitutional Court, the learned Advocates are expected to act with some sense of responsibility and to ensure the dignity of the Court even while contending that the order passed by the Court suffers from a patent error.”

A survey of review-applicant/ petitioner's business premises was conducted by the Deputy Commissioner, Special Investigation Branch, Commercial Tax, Lucknow where it was found that the petitioner claimed to have received certain inward supplies on which it had claimed input tax credit. Petitioner was held liable for claiming ITC based on bogus invoices and penalty was imposed on it.

Appeal filed by the petitioner was also rejected holding that the assesee had adjusted in the bilties produced and there no actual transportation of goods. Petitioner approached the Allahabad High Court challenging the order of the Assessing Authority and the subsequent order of the Appellate Authority.

Justice Vidyarthi, in writ jurisdiction, held that even though the petitioner was granted ITC based on fulfillment of requirements under Section 16, after the inquiry the firms were found to be non-existent, bogus and merely existing on paper. Accordingly, the benefit of ITC could not be granted to the petitioner and penalty imposed was upheld.

The Court had further held that merely because the firms with transactions were allegedly made were registered on the date of the transaction, it cannot be said that actual supply was made.

Petitioner filed a review application alleging that the material placed on record by the petitioner was not considered by the Court. It was further alleged that the Court “has blindly believed the stand of the revenue that the seller/supplier firm were non- existent and bogus firms, which is a grave mistake and an omission committed by 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.”

Petitioner/ review-applicant relied on S. Madhusudhan Reddy vs. V. Narayan Reddy and Others where the Supreme Court has held that review application under Order 47 Rule 1 of CPC will be maintainable if any new or important evidence has been discovered which was not within the knowledge of the applicant, even after due diligence, at the time of passing of the order under review; or if there is mistake or error apparent on the face of the record in the order under review.

“Under Order 47 Rule 1 CPC a judgment 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 this 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,” held the Apex Court.

Justice Vidyarthi observed that during arguments, counsel for petitioner/ review-applicant could not bring on record any material which was not considered by the Court while passing the order under review. The Court held that all material placed before the Court by both parties was considered prior to passing of the order.

“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.”

Accordingly, the Court held that the allegations levelled by the petitioner/ review-applicant regarding only considering the material placed on record by the revenue were wrong. The Court further recorded that the affidavit filed by the petitioner of one Vishal Goyal regarding supply of goods was not stamped by the Notary and cannot be taken as fresh evidence for the purpose of reviewing the order of the writ Court.

Accordingly, the review application was dismissed.

Case Title: M/S Rajshi Processors Raebareli Thru. Its Partner Ashok Kumar Lakhotia v. State Of U.P. Thru. Prin. Secy. Deptt. Of State Tax,Lko. And 2 Others 2024 LiveLaw (AB) 391 [CIVIL MISC REVIEW APPLICATION No. - 69 of 2024]

Citation: 2024 LiveLaw (AB) 391

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