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TMI Blog2022 (10) TMI 1199X X X X Extracts X X X X X X X X Extracts X X X X ..... 21 C.No. IV/15/65/60/2019 Adjn BNW No. 04/ADC/NWD3/ST/2021, dated April 26, 2021 at annexure H passed by respondent No. 4. (c) For such further and other reliefs including costs, as the nature and circumstances of the case may require. 2. Heard learned counsel for the petitioner and learned counsel for the respondents and perused the material on record. 3. In addition to reiterating the various contentions urged in the memorandum of petition and referring to the documents produced by the petitioners, learned counsel for the petitioner submits that on October 1, 2018, the respondents issued a notice/letter intimating the petitioner that it was due in a sum of Rs. 1,81,99,659 towards service tax payable by the petitioner, to which the petitioner submitted a reply/response on June 6, 2019 admitting and quantifying the amount payable by him in terms of certain audit observations and disagreeing/denying other audit observations. The said contentions, objections and quantification urged by the petitioner was accepted by the respondent vide communication dated July 5, 2019 and reduced demand of Rs. 1,37,05,125 was made by the respondents by accepting the contentions, quantifications a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e benefit of the SVLDR Scheme. In Nikitha Build Tech's case [2023] 110 GSTR 426 (Karn), this court held as under (pages 427-434 in 110 GSTR) : "In this petition, the petitioner has sought for the following reliefs : 'A. Issue an appropriate writ, order or a direction in the nature of a writ of certiorari quashing the impugned order bearing C. No. IV/ 16/833/2019 Adjn BNW, dated May 6, 2020 passed by respondent No. 4 vide annexure N and hold that the petitioner is eligible for the benefit under the Scheme. B. Issue an appropriate writ, order or a direction in the nature of a writ of certiorari quashing Order-in-Original No. 30/2020-Adj., dated March 5, 2021 passed by respondent No. 6 vide annexure R and hold it to be illegal and against the intent or spirit of the Scheme. C. Issue a writ of mandamus, or such other writ, order or direction, as this honourable court may deem fit and proper, directing the Department to drop the show-cause notice bearing Sl. No. 19/2019- 20-JC, dated January 7, 2020 of the Joint Commissioner of Central Tax, Bengaluru North West vide annexure F.' 2. Heard learned counsel appearing for the petitioner and learned counsel appearing for ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 15497 of 2021, dated August 26, 2022 in order to contend that this court has come to categorical conclusion that the benefit under the SVLDR Scheme would be applicable even when an enquiry or investigation or audit is pending against the assessee so long as there is an admission and quantification of the amount payable by the petitioner prior to June 30, 2019. It is therefore submitted that the impugned orders at annexures N and R deserve to be quashed. 6. Per contra, learned counsel appearing for the respondents, in addition to reiterating the various contentions urged in the statement of objections submits that the respondents were fully justified in passing the impugned orders and the same do not warrant interference by this court in the present petition. It is also submitted that while the petitioner had admitted and quantified that he was liable to pay service tax in a sum of Rs. 50,50,277 as can be seen from annexure A, the petitioner had sought for waiver of a sum of Rs. 53,00,000 as can be seen from form SVLDRS-1 submitted by him and consequently, since there is variance between the admitted/quantified amount by the petitioner and the amount mentioned in form SVL DRS-1, t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... re this court by way of the present petition. 4. Per contra, learned counsel for the respondents-Revenue submits that there is no merit in the petition and that the same is liable to be dismissed. 5. The material on record discloses that a perusal of the impugned order/letter will indicate that the sole ground on which the application of the petitioner for grant of benefit under the SVLDR Scheme, was that the investigation initiated against the petitioner was not completed as on June 30, 2019 and consequently, the petitioner was not eligible under the SVLDR Scheme. In this context, it is relevant to state that as can be seen from the notification dated August 27, 2019 issued by the Central Board of Indirect Taxes and Customs in relation to the SVLDR Scheme, respondents have clarified that at clause 10(g) of the said circular that cases under an enquiry, investigation or audit where the duty demand has been quantified on or before June 30, 2019 would be eligible under the SVLDR Scheme. The said clause 10(g) of the circular is extracted as hereunder : '10. Further, the following issues are clarified in the context of the various provisions of the Finance (No. 2) Act, 2019 a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ntly, on this ground also, the impugned letter/order deserves to be quashed and the mater remitted back to the respondents for reconsideration afresh and in accordance with law. 8. In the result, I pass the following : ORDER '(i) Petition is hereby allowed. (ii) The impugned letter/communication/order at annexure A dated May 8, 2020 is hereby set aside. (iii) The matter is remitted back to the respondents for reconsideration of the claim of the petitioner afresh bearing in mind the observations made in this order as well as the SVLDR Scheme and the circular dated August 27, 2019 in accordance with law.' 10. As can be seen from the aforesaid judgment, this court has come to the conclusion that notwithstanding pendency of an enquiry or investigation or audit on or before and as on 30, 2019, so long as the petitioner had admitted and quantified the service tax payable by him prior to June 30, 2019, the petitioner-assessee would be entitled to the benefit of the SVLDRS Scheme and consequently, this court set aside the order impugned therein rejecting the claim of the petitioner-assessee therein for the benefit of SVLDRS Scheme. 11. Under these circumstances, in vie ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... espondents that the order- in-original was not stayed by any forum or authority and that it was not a fit case for invoking the writ jurisdiction of this court under article 226 of the Constitution of India is concerned, it is relevant to state that the impugned order-in-original dated March 5, 2021 was passed by respondent No. 6 only after issuing the impugned order/letter dated May 6, 2020 holding that the petitioner is not entitled to the benefit under the SVLDR Scheme and consequently, merely because the order was not stayed, the said circumstance cannot be made the basis to hold that the present petition was not maintainable before this court, particularly, when the impugned order-in-original dated March 5, 2021 was passed during the pendency of W. P. No. 8051 of 2021 before this court. 16. In so far as the contention urged by learned counsel appearing for the respondents that the present petition is barred by res judicata in view of disposal of W. P. No. 8051 of 2021 vide final order dated August 25, 2021 is concerned, it is necessary to state that the said petition was filed by the petitioner challenging the impugned order dated May 6, 2020 and not the order-in-original da ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r these circumstances, in the peculiar/special facts and circumstances obtaining in the instant case and in the light of the judgments of this court referred to supra, I am of the considered opinion that the respondents committed an error in not only passing the impugned order at annexure A rejecting the claim of the petitioner for benefit under the SVLDR Scheme, but also erred in passing the impugned order at annexure H dated April 26, 2021 and consequently, the impugned orders deserve to be set aside and the matter be remitted back to the respondent for reconsideration afresh in accordance with law. 9. In the result, I pass the following : ORDER (i) The petition is hereby allowed. (ii) The impugned order at annexure A passed by respondent No. 1 as well as the impugned order at annexure H dated April 26, 2021 passed by respondent No. 4 are hereby set aside. (iii) The matter is remitted back to the concerned respondents for reconsideration afresh the claim/SVLDRS application at annexure G dated December 20, 2019 in accordance with law bearing in mind the aforesaid judgments of this court, the circulars dated August 27, 2019 and December 12, 2019 as well as the observations ..... X X X X Extracts X X X X X X X X Extracts X X X X
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