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TMI Blog2016 (4) TMI 404X X X X Extracts X X X X X X X X Extracts X X X X ..... wind power and renewable, power generation services energy management, mobility and building technology, is a dealer registered in Delhi under the Delhi Value Added Tax Act, 2004 ('DVAT Act') 4. It is stated that the building technology business which was originally acquired by the Petitioner was demerged and a new company, i.e., Siemens Building Technology Private Limited ('SBTPL') was formed. On 1st January 2007, SBTPL was again merged with the Petitioner herein as a going concern. 5. Under the aegis of the demerged concern in the year 2006-07, an order was received by the Petitioner for supply of building technology goods that were manufactured/available outside India. Consequent upon the said order, the Petitioner placed an identical order on the foreign supplier and effected a 'sale in course of import' under Section 5 (2) of the Central Sales Tax Act, 1957 ('CST Act'). Correspondingly, in the returns filed under the DVAT Act, an exemption was claimed in respect of the above sales. 6. A default assessment order was passed by the Value Added Tax Officer ('VATO') on 12th July 2010 disallowing the above exemption on the ground that the turnover was relatable to the 'direct ex ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of dealers or classes of dealers or all dealers." 10. By a notification dated 20th September 2013 the Amnesty Scheme was notified. Section 2 (1) (d) of the Amnesty Scheme defined 'tax dues', as under: "(d) "tax dues" means- (i) tax due or payable by the dealers, registered or required to be registered, under the Act or the Central Sales Tax Act, 1956 for the period beginning from the 1st day of April 2005 and ending on the 31st day of March 2013, but not paid or partly paid till the 31st day of August 2013 and calculated in accordance with sub-Clause (1), (2) and (3) of clause 3 of the Scheme' and (ii) tax due and payable under the Central Sales Tax Act, 1956 or the erstwhile Delhi Sales Tax Act 1975 (43 of 1975) or the Delhi Sales Tax on Works Contract Act, 1999 (Delhi Act 9 of 1999) or the Delhi Sales Tax on Right to Use Goods Act, 2002 (Delhi Act 13 of 2002) or the Delhi Tax on Entry of Motor Vehicles into Local Areas Act, 1994 (Delhi Act 4 of 1995) for the period prior to 1st April 2005, but not paid or partly paid till the 31st day of August 2013 and calculated in accordance with sub-Clause (4) of clause 3 of the Scheme; and (iii) tax due and payable by a person who is li ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d by virtue of such waiver'. 13. The Petitioner filed an application before the Nodal Officer under the Amnesty Scheme on 26th December 2013 on the strength of Question No. 13 of the Frequent Asked Questions ('FAQ') which provided for waiver of penalty. The Petitioner informed that it had already paid the demand of tax and interest in terms of the rectification orders. The said application was examined in terms of clause 4 of the Amnesty Scheme and was rejected on 13th December 2014. The Petitioner received acknowledgment of discharge by Form DSC-3 dated 23rd July 2014 issued by the Respondent rejecting the Petitioner's application under the Amnesty Scheme. 14. Aggrieved by the above rejection of application, the Petitioner filed the present writ petition. 15. At the first hearing, i.e., on 22nd April 2015 notice was issued in this writ petition. On 5th May 2015 the Court directed that the Respondent should not take any coercive measures. The Respondent has since filed a reply to which a rejoinder has been filed by the Petitioner. 16. Mr. Gajendra Maheshwari, learned counsel for the Petitioner, submitted that the Petitioner's case is answered by the FAQs issued by the DT&T ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iving an example of Rs. 100 as tax, Rs. 50 as interest and Rs. 100 penalty. Of this the tax and interest are fully paid by 31st August 2013 and a sum of Rs. 50 is paid towards penalty. According to Mr Satyakam, in such instance the penalty paid would be adjusted towards the tax due but there would be no waiver of the balance penalty. Even where the tax and interest are paid and no penalty is paid and such penalty is challenged, then the dealer would not be entitled to avail of the Amnesty Scheme. The dealer would not be entitled to either refund of any excess amount or waiver of penalty. 19. Having considered the above submissions, it appears to the Court that the interpretation sought to be placed by the Respondents on the relevant clause is not consistent with the overall purpose of the Amnesty Scheme. The main purpose was to incentivise self-compliance by the dealer with the tax demand. While it is true that the Petitioner had paid tax and interest for the period in question even prior to the Amnesty Scheme, the fact remains that the Petitioner had challenged the levy of penalty for the same period and the said challenge is pending in the appeal before the AT. As righty pointed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n of the Scheme itself should be referred, in the considered view of the Court, the stand taken by the Respondents in the FAQs is consistent with the object of the Amnesty Scheme would constitute an instance of contemporanea expositio and would bind the DT&T. 22. The Court finds that no reasons have been given by Respondent No. 2 in the so-called order dated 23rd July 2014 in DSC Form 3 for rejecting the claim of the Petitioner. However, instead of setting aside the said order on that ground alone, and sending the matter back to Respondent No. 2 for a fresh decision, the Court considers it appropriate to examine the question of the Petitioner's entitlement to be considered under the Amnesty Scheme in this proceeding itself, particularly in view of the stand taken by the Respondents on the interpretation of clause 2 (1) (d) of the Amnesty Scheme. 23. The Court notes that the DT&T has not denied that the Petitioner satisfied the other conditions under the Amnesty Scheme. In other words the Petitioner falls within the ambit of Explanation I to clause 2 (1) (d) and outside the scope of Explanation 3 thereof. The Court is of the view that it would be anomalous for a defaulter of p ..... X X X X Extracts X X X X X X X X Extracts X X X X
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