The Union Of India vs Atibir Industries Co. Ltd
2021 Latest Caselaw 2610 Jhar

             THE HIGH COURT OF JHARKHAND AT RANCHI
                        Civil Review No. 20 of 2021

        1.   The Union of India.
        2.   Central Board of Indirect Taxes and Customs, New Delhi
        3.   Goods and Services Tax Council, New Delhi
        4.   Goods and Services Tax Network (GSTN), New Delhi           Petitioners.
                                           Versus
        1.   Atibir Industries Co. Ltd.               ....                Opp. Party
        2.   State of Jharkhand
        3.   Deputy Commissioner of State Tax, Giridih Circle, Giridih
                                                 .................. Proforma Opp. Parties
                                     With
                        Civil Review No. 30 of 2021
        1.   State of Jharkhand
        2.   Deputy Commissioner of State Tax, Giridih Circle, Giridh......Petitioners
                                     Versus
        1.   Atibir Industries Co. Ltd.                             ....... Opp. party
        2.   Union of India
        3.   Central Board of Indirect Taxes and Customs, New Delhi
        4.   Goods and Services Tax Council, New Delhi
        5.   Goods and Service Tax Network (GSTN), New Delhi..ProformaOpp.Parties

        CORAM:          Hon'ble Mr. Justice Aparesh Kumar Singh
                        Hon'ble Mrs. Justice AnubhaRawatChoudhary
                        Through Video Conferencing

        For the Petitioner: M/s P.A.S.Pati, RanjanaMukheerjee, Advocates
                             (Civil Review 20/2021)
        For the Petitioner: Mr. P.A.S Pati, G.A-III (Civil Review 30/2021)
        For the O.P. No. 1:Mr.SumeetGadodia, Advocate

04/29.07.2021
   1. Heard Mr. P.A.S. Pati, learned counsel appearing on behalf of the petitioner in
      both the cases.
   2. Heard Mr. Sumeet Gadodia, learned counsel appearing on behalf of the original
      writ petitioner/opposite party no. 1 in the present cases.
   3. These two civil review applications have been filed seeking review of the order
      dated 4th January, 2021 passed by this Court in W.P(T) No. 4061 of 2019.
   4. The writ petition was disposed of with a direction to the respondents of the writ

petition to either open GSTN portal enabling the writ petitioner to file its application for refund in GST RFD-01 or to manually accept the application for refund of the petitioner pertaining to the periods 2017-18 and 2018-19 in respect of its claim for refund of unutilized Input Tax Credit pertaining to compensation cess within a period of one month from the date of communication of the judgment.The aforesaid direction was issued in view of a finding recorded in the judgement under review after considering the materials on record that the

resolution comment in relation to the technical difficulty faced by the writ petitioner while submitting the application for refund, was communicated to the writ petitioner for the first time through the counter affidavit filed by the Respondent no. 4.

5. It has been submitted by the learned counsel for the review petitioner in both the cases that identical points are involved in both the review petitions.

6. Upon a query by this Court, the learned counsel for the review petitioner has not been able to point out any error of record committed by the writ court while passing the judgment under review.

7. While arguing on the ground of review it has been submitted by the learned counsel for the review petitioner that it was stated in the counter affidavit filed in the writ petition that the writ petitioner did not follow the resolution comment after closure of the ticket on 25.03.2019 and the review petitions have been filed on the point that the said resolution comment dated 25.03.2019 was communicated to the writ petitioner vide Annexure-2 to the review petitions.

8. Learned counsel has further submitted that review of the impugned judgment has been sought for only on account of communication as contained in annexure 2 of the review petitions.

9. During the course of arguments, it is an admitted fact that the so-called communication of resolution comment as contained in annexure 2 of the review petition was neither annexed nor mentioned in the counter affidavits filed in the writ records. It is also not in dispute that so called communication, if any, as contained in annexure 2 of the review petitions was already within the knowledge of the review petitioners in both the cases at the time of filing of the counter affidavit in the writ petition.

10. Learned counsel appearing on behalf of the writ petitioner has vehemently opposed the prayer and submits that no grounds for review is made out. He has also referred to Ground no. 14 (ii) in the review petitions wherein it has been stated by review petitioners that due to inadvertence, the aforesaid facts regarding communication of resolution comment could not be brought on record in the writ proceedings. Learned counsel has further submitted that it is neither the case of the review petitioners that there was any error of record, nor it is their case that something new was discovered subsequently. Accordingly, no case for review is made out. He has also submitted that otherwise also, it has been left to the authority to decide the claim for refund and there is no direction of refund as such.

11. After hearing learned counsel for the parties and going through the materials on record, this Court finds that a resolution of the problem was also issued but the

writ petitioner did not abide by the direction given in the resolution and it was specifically mentioned in para 8 of the counter affidavit filed by the respondent no. 1 to 4 in the writ petition that the ticket allotted to the writ petitioner was closed on 25.03.2019, but no supporting document with regard to communication of the resolution comment was brought on record. The statements made in para 8 of the counter affidavit was categorically responded in rejoinder by stating that the said resolution comment was never communicated to the review petitioner. The parties had joined issue regarding non-communication of the resolution comments to the writ petitioner.

12. It is an admitted fact that there is no error of record as such, but the review petitioner is seeking review by placing certain so-called communication of resolution comment to the writ petitioner (annexure-2 to the review petitions) by stating that the same were not produced in the writ records due to inadvertence. This Court is of the considered view that bringing the so-called communication of resolution comment to the writ petitioner (annexure-2 to the review petitions) by filing the same in the review petition for the first time, cannot be a ground for review. It is not the case of the review petitioners that so-called communication proof, if any, was not within their knowledge at the time of filing of the counter affidavit in the writ petition. Failure to place so called communication of resolution comment (annexure-2 to the review petitions) in writ record due to inadvertence, cannot be a ground for review.

13. In the aforesaid fact situation, this Court is of the considered view that no ground for review has been made out. Admittedly, no direction for refund has been made in the judgement under review, rather it was left to the concerned respondent to consider the refund application of the petitioner in accordance with law.

14. Consequently, these review petitions are dismissed.

15. Pending I.Asare closed.

(Aparesh Kumar Singh, J)

(Anubha Rawat Choudhary, J) Jk/