TMI Blog2016 (4) TMI 404X X X X Extracts X X X X X X X X Extracts X X X X ..... d to seek waiver. In other words the Scheme is sought to be interpreted in such a manner that compliance with part of the demand, i.e., payment of tax and interest but not penalty, would make a person ineligible to the Amnesty Scheme qua the penalty amount under challenge whereas a person who defaults in paying the tax and interest as well as penalty would be entitled to be benefit of the Amnesty Scheme and claim waiver of penalty. As 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, the impugned order is set aside and the petitioner is entitled to claim the benefit of the said Amnesty Scheme. - Decided in favour of appellant - W.P.(C) 3937/2015 & CM APPLs 7035/2015 (for stay), 8055/2015 (modification of order dated 22nd April 2015) - - - Dated:- 16-3-2016 - S. Muralidhar And Vibhu Bakhru, JJ. For the Petitioner : Mr. Gajendra Maheshwari with Ms. Swati Thapa, Advocates For the Respondents : Mr. Satyakam, Additional Standing counsel ORDER 1. This writ petition by the Petitioner, Siemens Limited, seeks quashing the Form DSC-3 dated 23rd July 2014 issued by the Respo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d rectification orders dated 13th July 2012 separately for the four quarters for the year 2006-07 and partly allowed the exemption claimed to the extent that the turnover was not supported by the documents. Tax and interest were levied under the CST Act and penalty under Section 86 (12) of the DVAT Act was also imposed. The Petitioner states that since it was unable to trace all the documents in view of the difficulty in tracking the files due to frequent transfer of records during the mergers and demergers, it decided to pay the tax and interest as determined by the rectification orders. 8. However, as far as the penalty was concerned, the Petitioner preferred an appeal before the OHA, i.e., the Special Commissioner-I. This appeal was rejected by the OHA by an order dated 1st February 2013 on the ground that the Petitioner had subsequently deposited the tax and interest. Aggrieved by the aforementioned order dated 1st February 2013, the Petitioner filed an appeal before the Appellate Tribunal ( AT ), Value Added Tax, New Delhi. 9. During the pendency of the aforementioned appeal, the DT T, GNCTD announced an Amnesty Scheme. Section 107 was inserted under the DVAT Act with ef ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... efore appellate authority/Tribunal or any higher court, including writ petition and special leave petition. Explanation.-2- Where a notice of assessment or assessment order has been issued to a person in respect of some default(s), the term tax dues shall also include tax dues relating to default(s) not covered in the notice of assessment or assessment order for the same tax period. Explanation.-3- This Scheme does not cover cases of notice of assessment of penalty issued under any of the relevant Acts and without having any relation to tax deficiency. 11. Further para 3 of the Amnesty Scheme sets out the procedure for calculation of tax dues and the relevant portion thereof reads as under: 3. Procedure for Calculation of Tax Dues- (1) Tax dues in respect of sub-clause (i) of clause 2(l)(d) by the dealer on whom notice of assessment under section 32 of the Act has not been served shall be calculated by him in the following manner; (i) The dealer shall first determine the commodity wise taxable turnover in respect of which declaration is to be made under this Scheme; (ii) He shall then ascertain the rate of tax of that commodity applicable as per Sche ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hat even when the penalty is challenged but the tax and interest is paid, the dealer is entitled to avail the benefit of the Amnesty Scheme. He submitted that there was no rational basis to justify the denial of the benefit of the scheme. He pointed out that even though the Respondent gave no reasons for rejecting the Petitioner s application for waiver of penalty, and no appeal was preferred against it, remanding the matter to the authorities for a fresh decision. 17. Countering the above submissions, Mr. Satyakam, learned Additional Standing counsel for the Respondents submitted that although the reasons have been spelt out in the order rejecting the claim of the Petitioner under the Amnesty Scheme, the Petitioner was not entitled to claim any such benefit. According to Mr. Satyakam, even in terms of the amended clause (2) (1) (d) of the Amnesty Scheme, the amount of penalty which alone was challenged before the Appellate Authority did not form part of the 'tax dues'. He submitted that the FAQs were not binding on the Respondents and had no legal basis. Further, it is the case of the Respondent that the Petitioner did not fall within the ambit of the Amnesty Scheme. He ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nesty Scheme qua the penalty amount under challenge whereas a person who defaults in paying the tax and interest as well as penalty would be entitled to be benefit of the Amnesty Scheme and claim waiver of penalty. 20. Reading of FAQ Nos. 2 and 13 brings out the approach of DT T. The answers provided therein recognize the claims for waiver of penalty even where there has been an excess payment of tax or payment of an advance tax. The said FAQ Nos. 2 and 13 read as under: Q2: In case of survey cases where default assessment is pending, and where advance cheque has been collected by the enforeem.ent team at the time of survey and encashed; can such advance, payment be adjusted from the amount of tax deficiency stated by the team in its report? If yes, where the amount of advance tax is more than the tax dues, can that excess payment be carry forward by the declarant and adjusted from his future tax liability? Yes, the advance tax collection can be adjusted by the declarant from his tax dues. Any excess payment can also be adjusted from his future VAT liability. However, he shall file the relevant details along with the DSC-1. Also, what about the case where the deal ..... X X X X Extracts X X X X X X X X Extracts X X X X
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