TaxTMI 
TaxTMI 
2020 (10) TMI 3
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....Rules") made under Section 120 of the said Finance Act which, inter alia, requires the Petitioner to deposit an amount of Rs. 2,19,82,499/- as against Rs. 71,11,033.80 initially approved in Form SVLDRS-2 No.L210220SV200524 dated 21-02-2020 on the ground of violation of the principles of natural justice. The Petitioner is also challenging the inaction on the part of Respondents 3 and 4 in not disposing of the application filed by the Petitioner seeking rectification of the error in form SVLDRS-3 issued to the Petitioner. 4. The Petitioner is a company incorporated under the Companies Act, 1956 and is engaged, inter alia, in the business of providing services in the field of Information Technology Software Services such as software development, software support services and IT enabled services (i.e BPO services) primarily to customers located outside India. 5. The Respondent Nos.3 and 4 are members of the Designated Committee of Mumbai East Commissionerate, constituted under Section 126 of the Finance Act. 6. It is submitted on behalf of the Petitioner that it has units registered as Software Technology Park under the Software Technology Parks of India Scheme in accordance w....
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.... made by the Petitioner and passed an order which is annexed at Exhibit-F to the petition making a total demand of Rs. 3.66 crores towards service tax dues as well as penalty. The Petitioner submits that despite the fact that the Petitioner had deposited Rs. 2.93 Crores out of the total demand of Rs. 3.66 crores, the adjudicating authority had passed the order dated 28-03-2019 inter alia holding that the said payment of tax was not towards the training services received from CG SAS. Being aggrieved by the said order dated 28-03-2019, the Petitioner filed Appeal No. ST/87028/2019 under Section 86 of the Act on 12.07.2019. 8. It is submitted on behalf of the Petitioner that pending final hearing of the appeal, the Sabka Vishwas (Legacy Dispute Resolution) Scheme (the "SVLDR Scheme") was enacted vide Chapter V of the Finance Act after which the SVLDRS Rules were framed. It is submitted that the objective of the Scheme is to liquidate legacy cases of Central Excise and Service Tax that are subsumed in GST and are pending in litigation at various fora. On behalf of the Petitioner, it is submitted that under the SVLDR Scheme, amnesty is allowed by offering an opportunity to the tax pa....
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....er, being beyond the declaration and acceptance. 12. Subsequently under Section 128 of the Finance Act read with Rule 6(6) of the SVLDRS Rules, the Petitioner made an application for rectification of mistake apparent on record vide its letter dated 13-03-2020 requesting the Designated Committee to issue revised Form SVLDRS-3 after granting the benefit of the amount of Rs. 2,47,85,775 deposited/pre-deposited by the Petitioner. Documentary evidence demonstrating the deposit of the aforesaid amount was also submitted subsequently. The Petitioner also sent emails dated 27-03-2020 and 01-04-2020 requesting the Designated Committee to issue revised Form SVLDRS-3 showing the estimated amount payable as Rs. 71,11,033.80. It is submitted that vide email dated 30-05-2020, Respondent no.3 directed the Petitioner to make the payment of amount due under the SVLDR Scheme in response to which the Petitioner requested for revised Form SVLDRS-3 after considering the rectification application, after which they would make payment. It is submitted that vide e-mail dated 09.06.2020, the Petitioner requested the Designated Committee to seek the verification report from the jurisdictional authority fo....
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....mitted therein that even while this petition is pending before this Court, the Designated Committee had on 03-07-2020 issued Discharge Certificate in Form No.SVLDRS-4 No. L030720SV400980 for full and final settlement of tax dues under Section 127 of the Finance Act (No.2) read with Rule 9 of the SVLDR Scheme at the aforesaid amount. 14. The Respondents have filed reply affidavit, inter alia, stating that the amount of Rs. 2,47,85,775/- claimed as pre-deposit does not clearly reflect that the same is in relation to the amount claimed by the Petitioner as pre-deposit. It is submitted that the two show-cause notices involved a period spread over 6 years from 2008-2009 to 2012-2013 and the reference of 63 challans spread over these 6 years cannot be specifically said to be towards payment of the particular arrears or pertaining to some other case or regular payment of some other unit and hence the deduction of Rs. 2,47,85,775/- from the total dues as claimed by the Petitioner is incorrect. It is also submitted that although the amount mentioned in SVLDRS-2 was Rs. 71,11,033/-, while issuing SVLDRS-3 the issue of eligibility of the amount of Rs. 2,47,85,775/- was considered which the....
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....y Dispute Resolution) Scheme, 2019. The Statement of Object and Reasons to the Finance Bill for the financial year 2019-20 with respect to the Sabka Vishwas (Legacy Dispute Resolution) Scheme 2019 is as under. "The Scheme is a one time measure for liquidation of past disputes of Central Excise and Service Tax as well as to ensure disclosure of unpaid taxes by a person eligible to make a declaration. The Scheme shall be enforced by the Central Government from a date to be notified. It provides that eligible persons shall declare the tax due and pay the same in accordance with the provisions of the Scheme. It further provides for certain immunities including penalty, interest or any other proceedings under the Central Excise Act, 1944 or Chapter V of the Finance Act, 1994 to those persons who pay the declared tax dues." 18. Chapter V of the Finance Act dealing with the SVLDR Scheme, inter alia, provides for the relief available under the Scheme, declaration to be made under the Scheme, verification of declaration by Designated Committee, issue of statement by Designated Committee, rectification of errors, issue of Discharge Certificate by Designated Committee, power to ma....
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....at if the amount of pre-deposit or deposit already paid by the declarant exceeds the amount payable by the declarant, as indicated in the statement issued by the designated committee, the declarant shall not be entitled to any refund. 125. Declaration under Scheme. (1) All persons shall be eligible to make a declaration under this Scheme except the following, namely:- (a) who have filed an appeal before the appellate forum and such appeal has been heard finally on or before the 30th day of June, 2019; (b) who have been convicted for any offence punishable under any provision of the indirect tax enactment for the matter for which he intends to file a declaration; (c) who have been issued a show cause notice, under indirect tax enactment and the final hearing has taken place on or before the 30th day of June, 2019; (d) who have been issued a show cause notice under indirect tax enactment for an erroneous refund or refund; (e) who have been subjected to an enquiry or investigation or audit and the amount of duty involved in the said enquiry or investigation or audit has not been quantified on or before the 30th day of June....
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....e issued within a period of sixty days from the date of receipt of the declaration. (5) The declarant shall pay electronically through internet banking, the amount payable as indicated in the statement issued by the designated committee, within a period of thirty days from the date of issue of such statement. (6) 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. (7) Where the declarant has filed a writ petition or appeal or reference before any High Court or the Supreme Court against any order in respect of the tax dues, the declarant shall file an application before such High Court or the Supreme Court for withdrawing such writ petition, appeal or reference and after withdrawal of such writ petition, appeal or reference with the leave of the Court, he shall furnish proof of such withdrawal to the designated co....
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.... never made and proceedings under the applicable indirect tax enactment shall be instituted. 130. Power to make rules. (1) The Central Government may, by notification in the Official Gazette, make rules for carrying out the provisions of this Scheme. (2) Without prejudice to the generality of the foregoing power, such rules may provide for all or any of the following matters, namely:- (a) the form in which a declaration may be made and the manner in which such declaration may be verified; (b) the manner of constitution of the designated committee and its rules of procedure and functioning; (c) the form and manner of estimation of amount payable by the declarant and the procedure relating thereto; (d) the form and manner of making the payment by the declarant and the intimation regarding the withdrawal of appeal; (e) the form and manner of the discharge certificate which may be granted to the declarant; (f) the manner in which the instructions may be issued and published; (g) any other matter which is to be, or may be, prescribed, or in respect of which provision is to be made, by rules. ....
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....as under:- "Rule - 3.Form of declaration under section 125 .- (1) The declaration under section 125 shall be made electronically at https://cbic-gst.gov.in in Form SVLDRS-1 by the declarant ,on or before the 15th January, 2020. (2) A separate declaration shall be filed for each case. Explanation.- For the purpose of this rule, a "case" means - (a) a show cause notice, or one or more appeal arising out of such notice which is pending as on the 30th day of June, 2019; or (b) an amount in arrears; or (c) an enquiry or investigation or audit where the amount is quantified on or before the 30th day of June, 2019; or (d) a voluntary disclosure. Rule - 4. Auto acknowledgment.-On receipt of declaration, an auto acknowledgment bearing a unique reference number shall be generated by the system. Rule - 6. Verification by designated committee and issue of estimate, etc.- (1) The declaration made under section 125, except when it relates to a case of voluntary disclosure of an amount of duty, shall be verified by the designated committee based on the particulars furnished by the declarant as well as the records ava....
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....ition or reference before a High Court or the Supreme Court, as the case may be, under sub-section (7) of section 127 shall be furnished electronically by the declarant. Rule - 9. Issue of discharge certificate.- The designated committee on being satisfied that the declarant has paid in full the amount as determined by it and indicated in Form SVLDRS-3, and on submission of proof of withdrawal of appeal or writ petition or reference referred to in rule 8, if any, shall issue electronically in Form SVLDRS-4 a discharge certificate under subsection (8) of section 127 within thirty days of the said payment and submission of the said proof, whichever is later: Provided that in a case where Form SVLDRS-3 has not been issued by the designated committee by virtue of the proviso to sub-rule (2) of rule 6, the discharge certificate shall be issued within thirty days of the filing of declaration referred to in sub-rule (1) of rule 3." 20. From the above, we find that as a one time measure for liquidation of past disputes of Central Excise and Service Tax, the SVLDR Scheme has been issued by the Central Government. The SVLDR Scheme has also been issued to ensure disclosur....
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....d Other Laws (Relaxation of certain Provisions) Ordinance 2020 dated 31.03.2020 was 30.06.2020, the Petitioner filed this Petition. However, since the matter could not be listed before 30.06.2020, the Petitioner has made the payment of the said amount electronically and also filed a letter dated 30.06.2020 stating that the said payment is under protest and strictly without prejudice to the claim of refund in the pending Writ Petition. The verification report as furnished by the jurisdictional divisional commissioner referred to in the Reply Affidavit on the basis of which From SVLDRS-3 for an amount of Rs. 2,19,82,499/- has been claimed to be issued, has admittedly not been shared with the Petitioner. If an opportunity for personal hearing as contemplated in Rule 6(3) of the SVLDRS Rules was given to the Petitioner pursuant to Form SVLDRS-2 with an estimate of an amount of Rs. 71,11,033.80 payable by the declarant, which amount has been accepted by the Petitioner pursuant to Form SVLDRS-2A in accordance with Rule 6(4) of the SVLDRS Rules, then, we do not see any reason as to why when the amount payable is sought to be enhanced from Rs. 71,11,033.80 to Rs. 2,19,82,499/- no such oppo....