Can ‘Obiter dictum’ of some case be a sole basis for deciding another case by the Hon’ble Supreme Court

On 10.12.2021, the Hon’ble Supreme Court in Union of India & Ors. v. Aap and Company (2021) J.K.Jain’s GST & VR 515  has reversed the judgment of the Hon’ble Gujarat High Court in AAP & Co. v. Union of India (2019) 32 J.K.Jain’s GST & VR 1 (Guj) based entirely on the ‘Obiter dictum’ in the case of Union of India v. Bharti Airtel Ltd. (2021) J.K.Jain’s GST & VR 369.

Our analysis & Observations:

It is really surprising that the advocate of the respondent could not convince the Hon’ble Supreme Court that how the judgment of High Court of Gujarat has been distinguished. And therefore the Hon’ble Supreme Court had to write the following line in their judgment;

“Learned counsel for the respondent was at pains to persuade us that the three Judge Bench judgment can be distinguished”.

It seems that it resulted into an absurd conclusion by the Hon’ble Supreme Court that in Union of India v. Bharti Airtel Ltd., the judgment of High Court of Gujarat in AAP & Co. v. Union of India (2019) 32 J.K.Jain’s GST & VR 1 (Guj) has been expressly overruled.

We have already written in our magazine on page 370 of the Bharti Airtal’s case (supra) that the case of Aap & Co. (supra) of Gujarat High Court has been distinguished, under the title “Cases Referred to”.

In our view, the observations made by the Hon’ble Supreme Court in the Bharti Airtal’s Case (supra) regarding whether GSRE-3B a return or not, is an ‘Obiter dictum’ by the Hon’ble Supreme Court given in para 41 of the judgment in the Bharti Airtal’s Case (supra), which is not a ‘ratio decidendi’.

And based entirely on the ‘Obiter dictum’ of some case, the Hon’ble Supreme Court can’t decide another case.

Therefore the need of the hour is to seek review/rectification of the above case, since in Bharti Airtal’s case (supra), the issue centered around unilateral rectification of GSTR­-3B, and retrospective amendment by Rule 61(5), CGST Rules, 2017 was not challenged.

CA Om Prakash Jain s/o J.K.Jain, Jaipur

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