TaxTMI 
TaxTMI 
2015 (11) TMI 170
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.... conditions of sub-section (4) of section 107 of the Finance Act, 2013. 4. The facts stated briefly are that the petitioner is, inter alia, engaged in providing cleaning services and manpower recruitment agency services. The audit of the records of the petitioner for the period 2008-09 to 2011-12 was conducted by the Department on 25.06.2013, 27.06.2013, 04.07.2013 and 05.07.2013. The audit report raised five revenue paras and the petitioner accepted four revenue paras and made payment of service tax, interest and penalty and accordingly, four revenue paras were settled. However, the petitioner did not accept the fifth revenue para and did not pay service tax amounting to Rs. 12,97,785/-. The details of the amount demanded in the audit report are reproduced herein below: Revenue para No. in audit report Service Tax (in INR) Interest (In INR) Penalty (In INR) Total Details of challan Para 1 4,86,045/- 1,86,584/- 52,566/- 7,25,195/- 219 & 224 dated 26.07.2013 Para 2 1,99,702/- 1,99,702/- 219 dated 26.07.2013 Para 3 48,100/- 48,100/- 219 dated 26.07.2013 Para 4 2,76,739/- 1,97,251/- 4,73,990/- 224 dated 26.07.2013 Para....
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.... application and that the audit officials did not inform the petitioner about the benefit of VCES scheme and hence, the petitioner continued with normal audit process instead of filing VCES application. The petitioner further informed the Commissioner of Service Tax that it had declared tax dues of Rs. 20,63,597/- under VCES and requested to consider payment of tax amounting to Rs. 7,62,784/- (paid under correct tax accounting code), Rs. 4,36,401/- (paid wrongly under interest code) and Rs. 48,100/- (paid wrongly under penalty code), totalling to Rs. 12,47,285/- to be considered as payment made in manpower service tax code as part compliance under VCES. 10. As per the provisions of VCES, the person making declaration under form VCES-1 has to pay minimum 50% of the tax dues declared on or before 31.12.2013. By a letter dated 17.12.2013, the petitioner informed the respondent No.3 - Assistant Commissioner of Service Tax, Ahmedabad that in addition to payment of Rs. 12,47,285/- against the tax dues declared amounting to Rs. 20,63,597/-, additional payment of Rs. 3,08,305/- has been made. Thus, a total amount of Rs. 15,55,590/- (75% of the tax dues declared) was paid by the petitioner....
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....under section 108 of the Finance Act, 2013 in respect of the "total tax dues" amounting to Rs. 20,63,597/- declared under VCES-1. The third respondent, accordingly, refused to issue acknowledgment of discharge under form VCES-3 on the ground that the circular dated 25.11.2013 only clarifies that the service tax paid prior to VCES declaration can be adjusted against tax dues declared. According to the third respondent the contention of the declarant that since the accounting code of interest of Rs. 6,36,103/- had been wrongly paid under the head of interest and subsequently the accounting code of the same is changed and therefore the same is now "tax dues" and therefore may be adjusted against total tax dues declared under VCES-1 is not convincing as the said amount is nothing but interest only which has been confirmed by the Audit and also correctly quantified and mentioned in the final audit report dated 11.10.2013 and was paid accordingly at the material period. Now, the plea of the declarant that the same was paid wrongly at the material period is nothing but "an after thought" so as to escape from service tax liability to the tune of Rs. 6,36,103/-. The third respondent accordi....
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.... the petitioner on account of an inadvertent error chose not to apply for the benefit under the notification, the same would result in denial of the benefit. The court was of the opinion that there is a duty cast on the authority to assess the goods and impose duty according to law which includes a statutory notification, if duty cannot be demanded if otherwise not payable. Once there be a power to assess, there is a corresponding duty to assess according to law. The court held that the fact that the petitioner had paid the duty under mistake of law and/or in the case before it, by oversight, could not result in being assessed to duty which was otherwise not payable. The court was of the opinion that this would be a case of manifest injustice and on the face of it erroneous. 11.2 Reliance was also placed upon the decision of this court in the case of S. R. Koshti v. Commissioner of Income Tax, (2015) 276 ITR 165 (Guj.) ,wherein the court has held thus: "18. The position is therefore that, regardless of whether the revised return was filed or not, once an assessee is in a position to show that the assessee has been over-assessed under the provisions of the Act, regardless of whet....
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.... was, accordingly, urged that the petition deserves to be allowed by setting aside the impugned letter / communication dated 20.03.2015. 12. Opposing the petition, Mr. Gaurang Bhatt, learned senior standing counsel for the respondents No.2 and 3 reiterated the contents of the affidavit-in-reply of the respondent No.3. It was submitted that the VCE Scheme is a voluntary scheme enabling the assessee - tax payer to avail the benefit thereunder and that the revenue is under no compulsion to inform and convey to the assessee the fact that he can avail of the benefit of the VCE Scheme which has been brought in force by a statutory amendment. It was submitted that in the present case, the petitioner had himself informed that the amount in question to the tune of Rs. 6,84,203/- had been paid towards the interest and penalty. Therefore, the amount paid towards interest and penalty cannot be considered as tax amount and consequentially, cannot be adjusted against the tax dues declared by the petitioner. The third respondent was, therefore, justified in holding that the petitioner had failed to pay Rs. 6,84,203/-. 12.1 Referring to the impugned letter/communication, it was pointed out that ....
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....ction (3) of section 107 provides that the declarant shall, on or before the 31st day of December, 2013, pay not less than fifty per cent of the tax dues so declared under sub-section (1) and submit proof of such payment to the designated authority. Sub-section (4) of section 107 provides that the tax dues or part thereof remaining to be paid after the payment made under sub-section (3) shall be paid by the declarant on or before the 30th day of June, 2014. 15. In the present case, insofar as compliance with the provisions of sub-section (3) of section 107 of the Act is concerned, there is no dispute. What is disputed is compliance with the provisions of sub-section (4) of section 107 of the Act, inasmuch as, it is the case of the respondents that the remaining tax dues have not been paid by the petitioner before 30th June, 2014. The proviso to section 107 of the Act provides for the payment of the declared amount on or before 31st December, 2014 along with interest thereof as prescribed thereunder. Sub-section (6) of section 107 of the Act provides that the declarant shall furnish to the designated authority details of payment made from time to time under the scheme along with a ....
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.....05.2014. If the aforesaid amount of Rs. 6,36,103/- is taken into consideration towards the payment of the amount of Rs. 20,63,597/- payable by the petitioner under the declaration filed under the scheme, total amount stands paid. However, the respondents have raised a technical objection that such amount was initially paid under the accounting head of interest and penalty and therefore, cannot be considered as having been paid towards service tax and accordingly, the requirements of section 107 of the Act are not satisfied and that the amount not having been paid within due date prescribed under sub-section (4) of section 107 of the Act, the petitioner is not entitled to the benefit under the Scheme. 17. In view of the facts narrated hereinabove, it is evident that before 30th May, 2014, the amount of Rs. 6,36,103 came to be adjusted to the correct accounting head of service tax. Accordingly, an amount of Rs. 6,36,103/- stood paid under the head of service tax. For the purpose of the provisions of subsection (3) of section 107 of the Act not less than fifty per cent of the tax dues declared under sub-section (1) have to be paid to the designated authority, the compliance of which....