TaxTMI 
TaxTMI 
2022 (5) TMI 1249
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.... only) to M/s Asmita Chitra under the provision of Section 11B of the Central Excise Act, 1944 as made applicable to Service Tax matters under Section 83 of Chapter V of Finance Act, 1994" 2.1 Appellant is proprietorship concern of Ms Smita Avinash Talwalkar and was providing taxable services classifiable under category of Advertising Agency and TV or Radio Programme Production. 2.2 She opted for the VCES, and made the declaration on 24.12.2013 as required in terms of the said scheme, declaring the service tax liability of Rs 61,12,144/- for the period 01.10.2008 to 31.12.2012. The said liability was discharged as detailed in table below. S No Date Nature Amount Paid 1 27.12.2013 Service Tax 20,00,000 2 22.01.2014 Service Tax 3,00,000 3 26.03.2014 Service Tax 7,00,000 4 30.12.2014 Service Tax 31,12,144 5 Interest 2,80,860 Total 63,93,004 2.3 She expired on 06.08.2014. 2.4 Legal heir of Ms Smita Avinash Talwalkar has relied on the decision of the Hon'ble Apex Court in the case of Shabina Abraham [2017 (50) S.T.R. 241 (S.C)], to claim refund of amount deposited aft....
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....o any other person:" 4.3 In the present case the application under the said Section has been filed legal heir of the proprietress claiming the refund the of amount paid by the proprietary concern after the expiry of proprietress, in respect of the amount due in terms of VCES introduced by the "Chapter VI: Service Tax Voluntary Compliance Encouragement Scheme, 2013" vide Section 104 to 114 of the Finance Act, 2013. 4.4 In this context the letter dated 24.04.2015 of the legal heir is reproduced below, wherein there is admission to the effect that the amounts have been paid voluntarily by the proprietress in terms of the scheme. 4.5 Section 109 of the Finance Act, 2013 reads as follows: "109. Any amount paid in pursuance of a declaration made under sub-section (1) of section 107 shall not be refundable under any circumstances." 4.6 In view of the said specific provisions made by the Section 109 referred above, we are not inclined to accept the submissions of the appellant that the amount can be claimed by them as refund under Section 11B of the Central Excise Act, 1944 read with Section 83 of the Finance Act 1994. 4.7 Further we al....
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....vidual. Let us therefore, proceed to examine the other provisions of the 1953 Act." It then went on to quote Section 15(1) of the Bombay Sales Tax Act, 1953 and then arrived at this conclusion : "22. Section 15(1) contains an important clause that action thereunder can be taken by the Collector after giving a notice to the assessee under Section 14(3) of the Act within the prescribed period. Once such a notice is given, the Collector gets the jurisdiction to assess or re-assess the amount of tax due from the dealer and all the provisions of the Act "shall apply accordingly as if the notice were a notice served under" Section 14(3). Section 14(3) speaks of the power of the Collector to assess the amount of tax due from the dealer after giving notice to him, if the Collector is not satisfied that the returns furnished are correct and complete. The jurisdiction to assess or reassess which is conferred by section 15(1) is thus equated with the original jurisdiction to assess the dealer under section 14. By this method, the continuity of the legal personality of the assessee is maintained in order to enable the assessment of turnover which has escaped assessment. It is....
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....contained in the charging sections. The resourcefulness and ingenuity which go into well-timed dissolution of firms ought not to be allowed to be used as convenient instruments of tax evasion. As observed by Lord Dunedin in Whitney v. Commissioners of Inland Revenue : "A statute is designed to be workable, and the interpretation thereof by a Court should be to secure that object, unless crucial omission of clear direction makes that end unattainable." Far from there being any crucial omission or a clear direction in the present case which would make the end unattainable, the various provisions to which we have drawn attention leave it in no doubt that a dissolved firm can be assessed on its pre- dissolution turnover." 24. It is clear that on a conjoint reading of these paragraphs this Court found that the machinery provisions contained in the Bombay Sales Tax Act, 1953, were sufficient to reassess a dissolved firm in respect of income that had escaped assessment before its dissolution. A distinction was drawn between an individual who dies and a firm that is dissolved as a device to evade tax. The Court laid great stress on the provision contained i....
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....to keep section 19(3) of the 1959 Act apart while construing the 1953 Act because it is the Courts, not the legislature, who have to construe the laws of the land authoritatively. As said in Craies on Statute Law : Except as a parliamentary exposition, subsequent Acts are not to be relied on as an aid to the construction of prior unambiguous Acts. (6th Ed., p. 146). The limited use which may be made of the language of Section 19(3) of the 1959 Act, though such a course is unnecessary, is for saying that it serves to throw some light on the Act of 1953, in case the argument is that the Act of 1953 is ambiguous. 36. Section 19(3) being quite clear and explicit, it is unnecessary to dwell on the other provisions of the Act of 1959 in order to show that a dissolved firm can be assessed under it. We may only point out that the Act of 1959 contains provisions similar to those in Sections 15, 15A and 35 of the Act of 1953 on which we have dwelt at some length. Those provisions can be found in Sections 35, 35A and 62 of the Act." 25. A reading of the ratio of the majority decision contained in Murarilal's case (supra) would lead to the conclusion t....
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....of the amounts paid under the said scheme will be refunded under any circumstances. 5.1 The impugned order is upheld and the appeal is dismissed. (Order pronounced in the open court) ============= Document 1 Amber Talwalkar 201, Matoshri Height, D.L. Vaidya Road, Shivaji Park, Dadar, Mumbai - 400 028 To, The Assistant Commissioner of Service Tax (Anti Evasion) Service Tax-ill, Mumbai, Lotus Info Tech Park, Parel (East), Mumbai-400 012 Respected Madam, Sub: - Enquiry against M/s. Asmita Chitra - Reg. Date: 24/04/2015 Ref: - Letter F.No. ST-3/AE/AC/026/2014-15/35 dated 18-04-2015. With regards to your notice received Dated: 18/04/2015 and our letter submitted on 20/04/2015 we submit here with this letter following details and documents as asked by your good self 1. Interest Calculation sheet of Rs.2,80,860/- paid on 31/12/2014 is attached in Annexure-1 2. It could be noted that Late Smita Avinash Talwalkar had applied under VCES for her proprietary concern M/s Asmita Chitra. She had declared total Service Tax payable of Rs. 61,12,144/- out of which Rs. 20,00,000/- was paid on 27/12/2013 itself. As you ....