sabka vikas scheme

[Richa Goyal]

The Order was issued on 27.06.2019 and the appeal was filed within the appeal period. The assessee has paid 80% of the duty demand. The department wants us to file the application in the "ARREARS" category though the period of fillig the appeal has not expired and the appeal nas been filed before the due date.

Our matter should be accepted in the "LITIGATION" category as the period of filling the appeal has not expired on 30.06.2019..

Kindly guide..

[Rajagopalan Ranganathan]

Sir,

According to Section 127 (6) of Finance (No. 2) Act, 2019 (SVLDRS) "Where the declarant has filed an appeal or reference or a reply to the show cause notice against any order or notice giving rise to the tax dues, before the appellate forum,other than the Supreme Court or the High Court, then, notwithstanding anything contained in any other provisions of any law for the time being in force, such appeal or reference or reply shall be deemed to have been withdrawn."

Therefore you can file the declartion under the scheme. However since you have paid 80% of the demand already and the amount determined by the committee will be be less than the deposit made by you. However no refund will be granted to you. You can get full waiver of interest and penalty.

[KASTURI SETHI]

You are eligible for filing declaration under litigation category. If you file declaration under 'Arrears' category, your declaration is likely be rejected. Filing appeal against the Adjudication Order means you are challenging OIO and the demand/issue is a subject matter of litigation. Only those cases can fall under the category of 'arrears' where either no appeal has been filed and appeal period is over.

That case can also fall under the category of arrears where appeal has been filed but stay has not been granted. Under CGST Act, pre-deposit is mandatory and after pre-deposit stay is granted.

[KASTURI SETHI]

In continuation of my reply dated 20.12.19, it is further opined that your case is safe under litigation category. Under this category there is not an iota of risk at all.

[Richa Goyal]

thanks for your guidance... but the surat commissinerate is rejecting the application on the ground that it should be filed in the arrears category.

[KASTURI SETHI]

I cannot comment upon the decision of Surat Commissionerate without knowing the facts of the case. Can you email the copy of order of Surat Commissionerate ?

My further views are as under :-

1. If you have filed an appeal along with stay application, the department cannot recover the amount. (Board's Circular No.1035/23/2016-CX dated 4.7.16 refers). If Govt. dues cannot be recovered, how the same can fall under the category of 'Arrears" ? The matter is sub judice. In other words, under litigation.

2. Under GST regime also, if pre-deposit is made under Section 107 and 112 it is deemed stay order under sub-Section 7 of Section 107 and sub-section 9 of Section 112 of CGST Act refer.

See the definition of "Amount in arrears" provided under Section 121(c) of Chapter V of the Finance (No.2) Act, 2019 SVLDRS, 2019. Your case cannot be covered under the category of 'Arrears'.

Suppose you have not filed stay application with the Commissioner (appeals), even then the amount of confirmed demand, penalty etc. cannot be recovered until the appeal period is over. It will become arrears only after the expiry of appeal period and that too, when there is no stay.

[Mr Rao]

Dear querist,

I concur with the views of Shri Sethiji.