SABKA VISHWAS (LEGACY DISPUTE RESOLUTION) SCHEME, 2019

[LALIT MUNOYAT]

An assessee got the Adjudication Order by the Principal Commissioner under service tax on June 15, 2019 and he filed an appeal before the CESTAT on 13th September 2019. Is he eligible to file declaration under the above scheme..

The first FAQ provides as under:

Q7. What is the scope under the Scheme when adjudication order determining the duty/tax liability is passed and received prior to 30.06.2019, but the appeal is filed on or after 01.07.2019?

Ans. Such a person shall not be eligible to file a declaration under the Scheme.

Please provide clarification.

Thanks

[Himansu Sekhar]

Please refer to para 2(vi) of cbic circular dated 29.10.19. Your case is covered

[Himansu Sekhar]

Also make discussion with deptt. Officers

[KASTURI SETHI]

I support the views of Sh.Himansu Sekhar Ji. I further add that appeal (already filed) has to be withdrawn in terms of para-2(viii) of Circular No.1072/05/2019-CX dated 25.9.19

[Mr Rao]

Dear Querist,

Though such a case is not eligible under the Litigation Category, such a person may choose to withdraw the appeal and furnish to the department an undertaking to not file any further appeal in the matter. In the instant case the assessee can make a declaration under the Arrears category.

[LALIT MUNOYAT]

Thanks to all the experts for valuable reply. My concern is that after withdrawing the appeal if , for some reason, I am found to be not eligible under the scheme as per their FAQ, then what will happen to my appeal ? The CESTAT may not permit me to restore!

Secondly, in any case if the declaration is accepted then the appeal is deemed to have been withdrawn. Therefore can I go file the declaration and on its acceptance I withdraw the appeal and inform the department.

Further clarification is humbly requested.

[KASTURI SETHI]

Sh.G.B.Rao has rightly advised you. As per latest FAQs (Second Edition) on this amnesty scheme, you are eligible for this scheme. Q.No.6 and answer is as follows:-

Q No.6 : What is the scope under the Scheme when adjudication order determining the duty/tax liability is passed and received prior to 30.06.2019, but the appeal is filed on or after 01.07.2019?

Ans. Such a case is not eligible under Litigation Category. However, such a person may choose to withdraw the appeal, and furnish to the department an undertaking to not file any further appeal in the matter. In this case, he can make a declaration under the Arrears Category.

You can see question mentioned by you remains the same but the answer has changed in latest Second Edition of FAQ. You are eligible. So you need not worry.

In view of the above, now there is no uncertainty.

[Ganeshan Kalyani]

Yes, the querist can participate in this scheme without withdrawing the appeal.

[Ganeshan Kalyani]

However, an undertaking will required to be filed with the department stating that appeal will not be filed.

[Himansu Sekhar]

Now cbic issued faq. Such questions have been answered.

[LALIT MUNOYAT]

Thanks & Thanks a lot to all the experts. I can definitely withdraw the appeal from the CESTAT and file a declaration under this scheme. So far so good. But the point that worries me is that if the declaration is not accepted then what ? I can't refile the same appeal once again even with a COD application. Where do I stand then?

All Experts, if time and convenience permitting this last query may also be replied.

Thanks

CA Lalit Munoyat, B.com(Hons), FCA, CS, DISA from Mumbai.

Practicing at appellate forum mainly at ITAT and CESTAT Mumbai.

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[KASTURI SETHI]

There is no room for 'ifs' and 'buts' in life. Be optimistic. Govt. has changed the answer of same question in your favour and still you are in a dilemma. You can find so many case laws in favour of assessees as well as Govt. on the same issue. It depends on proper understanding and interpretation.Be confident and go ahead. Have faith in experts' opinion.

[LALIT MUNOYAT]

Thanks once again

[LALIT MUNOYAT]

A case exactly of the type of mine was recently considered by the - DELHI HIGH COURT where in it held that Case of petitioner is that, he petitioner has fallen in no man’s land and is not entitled the benefit of Scheme - HELD THAT:- The grievance of the petitioner appears to be justified and the respondents should seriously examine the same.

Listed for further hearing on 20-10-2019

2019 (11) TMI 243 - DELHI HIGH COURT IDEAL BROADCASTING INDIA PVT. LTD. VERSUS UNION OF INDIA & ORS.

 

AI Summary

Scheme eligibility clarified: taxpayers with prior adjudication may withdraw appeals and declare liabilities under arrears category.
Where an adjudication order was passed prior to the Scheme cut off but an appeal was filed afterwards, the assessees may qualify to file a declaration under the Arrears Category only if they withdraw the pending appeal and provide an undertaking not to file further appeals; this relief follows updated FAQs and CBIC circularal guidance which treat withdrawal plus undertaking as the procedural condition for Scheme eligibility.