9911796707
TMI Blog2025 (1) TMI 1263X X X X Extracts X X X X X X X X Extracts X X X X ..... solution) Scheme, 2019 ['SVLDRS' for short] by issuing Form No. SVLDRS-3 dated 04.12.2019. 5. This Court passed the following order on 08.01.2020. "1. Mr. D.K. Trivedi, the learned counsel appearing for the writ applicant, after obtaining instructions from his client, makes a statement that his client will deposit an amount of Rs.31,36,551.60 Paisa, with the respondent No. 2, within a period of two weeks from today. 2. In view of such statement, being made by the learned counsel appearing for the writ applicant and the writ applicant having undertaken to deposit the amount, referred to above, with the respondent No. 2, let Notice be issued to the respondents, returnable on 29th January, 2020. Direct service is permitted to the respondent Nos. 1 and 2. So far as the respondent No. 3 is concerned, service may be affected by Registered Post with Acknowledgment Due. 3. We direct the respondent No. 2 to accept the amount, referred to above, without prejudice to its rights and contentions. The amount shall be accepted towards service tax arrears." 6. Pursuant to the aforesaid order, the petitioner has deposited the amount of Rs. 31,36,551.60 as per the Form SVLDRS-1 on 21.01.2020 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... category of "arrears" as provided under section 121 (c) read with section 124 of the SVLDRS. The petitioner claimed the relief of 40% by agreeing to pay 60% of the arrears of Rs. 52,27,586/- amounting to Rs. 31,36,551.60. Accordingly, Form SVLDRS-2 was issued in terms of Rule 6(3) dated 22.11.2019. 7.8 The designated committed formed under the provision of the SVLDRS-2, taking into consideration the appeal filed by the department on 6th August 2019, had opined that the case of the petitioner falls in the category of 123 (a) of the SVLDRS to determine tax dues and not in category of 123(e) which prescribes that where the amount in arrears relating to the declarant is due, the amount in arrears to be the 'Tax Dues'. The petitioner, therefore, was called upon to pay amount of Rs. 1,55,32,324/- considering the appeal filed by the department against the relief granted in the Order-in-original to the petitioner as the amount of tax dues and notice for personal hearing was issued. 7.9 In response to the aforesaid notice for personal hearing in Form SVLDRS 2, the petitioner filed reply dated 29.11.2019 contending inter alia that the petitioner is not liable to pay the amount stated in F ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... vited attention of the Court to the inward stamp on the appeal filed by the respondent-department which shows that the appeal was preferred after 30.06.2019 i.e. on 06.08.2019. It was therefore submitted that admittedly, as on 30.06.2019, no appeal was pending either filed by the petitioner or the respondent-department against the Order-in-original therefore, the demand raised as per the Order-in-original would fall within the scope of "amount in arrears" which would be tax dues payable as per the Scheme and accordingly, the petitioner would be entitled to the benefit of 40% of the relief as per the section 124 (c) (ii) of the SVLDRS. 8.5 It was submitted that the respondent-designated authority has not applied the provisions of the SVLDRS for issuing the Form SVLDRS-3 and therefore, the same is liable to be quashed and set aside and the respondent-authority may be directed to issue SVLDRS-3 as per the From SVLDRS 1 filed by the petitioner. In support of his submissions, reliance was placed on the decision of Om Prakash Kashyap vs. Union of India reported in 2023 (70) GSTL 439 (Jharkhand) more particularly, paras 5 and 11 thereof which reads as under: "5. Learned counsel further ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ddition, Section 133 of the Act provides that for proper administration of the scheme, the Central Board of Indirect Taxes and Customs may issue orders; instructions and directions. 10. That the petitioner is not entitled to any equitable relief/reliefs from this Hon'ble Court & the Writ Application is fit to be dismissed inlimine." It is submitted that as per the statements made in the supplementary counter affidavit the declaration of the petitioner would fall in the category of "Litigation", if any appeal had been preferred by 30th June 2019 only, otherwise the case of the declarant such as petitioner would fall under the category "amount in arrears" as defined in Sub-clause (i) of Sub-section (c) of Section 121 of the Act which does not provide any such cut-off date. It is submitted that in that view of the matter the categorization of the case of the petitioner in "Litigation" category only on contemplation of filing of an appeal by the Department beyond the time limit and that too after rejection of SVLDRS-1 on 5th May 2020 was not proper in the eyes of law as there was no appeal pending as on 30th June 2019 contemplated in terms of Section 123 of the Scheme. It is submit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l mean the order of determination under Indirect Tax enactment as per Section 121 (o) of the Scheme. From bare perusal of Section 121 (c) & 124(1)(c), it would be evident that the case of Petitioner will fall under the "arrears category" nonetheless litigation category. At the cost of repetition, admittedly, the Show Cause Notice was issued on 28.10.2019 i.e., after 30th June, 2019, and the same was adjudicated on 14th January, 2020. It further appears that, even if it is to be accepted that Respondent-Department was intended to file Appeal against the Order-in-Original dated 14.01.2020, then also, such plea or ground of Respondents would not change the nature of category of the Petitioner-company. Admittedly, as per respondents they themselves have contended in their counter affidavit that they have filed an Appeal before the Appellate Tribunal on 25.06.2020. Thus, as on the date of filing of the declaration form by the Petitioner, no Appeal was filed and/or pending before the Appellate Forum. Indeed, for the purpose of determination of tax dues, the case of the petitioner does not fall under Section 123 of the scheme of 2019 as Department had not preferred an Appeal against the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... June, 2019........ (b) where a show cause notice under any of the indirect tax enactment has been received by the declarant on or before the 30th day of June, 2019, then, the amount of duty stated to be payable by the declarant in the said notice: Provided that if the said notice has been issued to the declarant and other persons making them jointly and severally liable for an amount, then, the amount indicated in the said notice as jointly and severally payable shall be taken to be the amount of duty payable by the declarant; (c) where an enquiry or investigation or audit is pending against the declarant, the amount of duty payable under any of the indirect tax enactment which has been quantified on or before the 30th day of June, 2019; (d) where the amount has been voluntarily disclosed by the declarant, then, the total amount of duty stated in the declaration; (e) where an amount in arrears relating to the declarant is due, the amount in arrears. 124. Relief available under the Scheme:- (1) Subject to the conditions specified in sub-section (2), the relief available to a declarant under this Scheme shall be calculated as follows:- (a) where the tax dues are relat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ." 11. Considering the above provisions of the SVLDRS, it is apparent and crystal clear that the case of the petitioner would fall in the category of "amount in arrears" as admittedly the petitioner has not preferred any appeal before 30.06.2019 challenging the Order-in-original and the demand raised in the Order-in-original amounting to Rs. 32,27,856/-has achieved finality so far as the petitioner is concerned and accordingly, the petitioner would be entitled to the benefit of the SVLDRS which has a basic feature of reducing the disputes and create an atmosphere of trust between the assessee and the respondent-department. 12. However, in the facts of the case it appears that, the designated committee, contrary to the provision of the SVLDRS and with total non-application of mind has issued Form SVLDRS-2 and without taking into consideration reply of the petitioner 29.11.2019 has issued Form SVLDRS-3 in a mechanical manner. The petitioner has been vigilant to challenge such SVLDRS-3 immediately by preferring this petition and this Court has directed the petitioner to deposit 60% of the tax arrears amounting to Rs. 31,32,551.60 which petitioner has already deposited. 13. Therefor ..... X X X X Extracts X X X X X X X X Extracts X X X X
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