TaxTMI 
TaxTMI 
2025 (6) TMI 361
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....8 i.e. demand notices, 9 SVLDRS-3 Forms issued on 28.01.2020 (forming part of Annexure P-12 colly), 9 SVLDRS-3 Forms issued on 25.02.2020 and letter Annexure P-15 whereby the respondent department has upheld its calculations. (iii) Issue a writ of mandamus directing the respondent to re-calculate correct tax liability of the petitioner under amnesty scheme; (iv) Declare that period under Section 127 (5) of Finance Act, 2019 is directly and a declarant may deposit tax dues up to 30.06.2021; (v) Issue writ of mandamus directing the respondents to decide representation letter dated 11.06.2020 (Annexure P-16) or in the alternative in view of pandemic COVID-19 spread across the country appropriately extend last date prescribe under Section 127(5) of Finance Act, 2019. 2. The petitioner is engaged in the business of rendering services of hospitality by way of hotel at Shimla. The Superintendent (Prev.), Shimla vide his letter dated 08.11.2016 directed the petitioner to supply a number of documents enumerated in the said letter for the period 2011-12 to 2015-16. The petitioner supplied all the documents and the official concerned pointed out that the petition....
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....as the date on which the Amnesty Scheme shall come into force. The Government of India vide Notification No. 05/2019 Central Excise-NT dated 21.08.2019 notified Sabka Vishwas (Legacy Dispute Resolution) Scheme Rules, 2019 (for short 'Rules'). 7. Under the Sabka Vishwas (Legacy Dispute Resolution) Scheme, 2019 the Petitioner filed 9 declarations under the category of investigation. As per section 121(h) of the Act, 2019 'declarant' means a person who is eligible to make a declaration and files such declaration under Section 125. Section 124 of the Act, 2019 provides manner to calculate relief available to the declarant. According to section 124(1) (d) of the Act, 2019 where due tax relates to enquiry, investigation (Section 121(m) defines enquiry, investigation) or audit (Section 121(g) defines audit), the declarant is eligible to get relief of 70% of due taxes in case amount of tax/duty is 50 Lakh or less and 50% in case due tax/duty is more than 50 Lakh. Moreso, when no "order", (Section 121(0) defines an order), determination under any of the indirect tax enactment had been passed in relation to a show cause notice in the case at hand. 8. It is averred that ....
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....pplication dated 24.02.2020, requested the respondents to revise SVLDRS-3. The petitioner also pointed out that it had made payments against outstanding dues and none of such payments related to specific period/year/quarter and, therefore, the amount paid by them deserves to be deducted from the net amount payable i.e. after deducting relief. 14. The respondents vide their letter dated 25.02.2020 informed the petitioner that calculation of amount to be paid is as per the provisions of law and has been checked again. The respondents further informed that 30 days period to make the payment from the date of issuance of SVLDRS-3 could not be extended so they are required to make the payment within time i.e. by 27.02.2020, failing which Form-4 would not be issued, nonetheless respondents issued fresh 9 SVLDRS-3 all dated 25.02.2020 as detailed below:- Sr. No. SVLDRS-3 No. & Date Amount Payable (') 1 L250220SV301383 - 25.02.2020 0.00 2 L250220SV301403 - 25.02.2020 0.00 3 L250220SV301685 - 25.02.2020 3,23,126 4 L250220SV301429 - 25.02.2020 0.00 5 L250220SV301438 - 25.02.2020 4,81,807 6 L250220SV301453 - 25.02.2020 3,85,338 ....
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....ce 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 committee, in such manner as may be prescribed, along with the proof of payment referred to in sub-section (5). (8) On payment of the amount indicated in the statement of the designated committee and production of proof of withdrawal of appeal, wherever applicable, the designated committee shall issue a discharge certificate in electronic form, within thirty days of the said payment and production of proof." 17. Since there was lock-....
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....nged the category of the petitioner from investigation to arrears and issued Form SVLDRS dated 28.01.2020 and 28.01.2020 declaring therein the total tax payable as Rs. 29,48,623/-. 23. According to the petitioner, it could not make the payment within the prescribed time limit due to financial crisis faced by it on account of lock-down owing to COVID-19 pandemic situation. 24. It was for this precise reason that the petitioner had been requesting the respondents for extension of time to deposit the amount, but according to the petitioner such representation was illegally rejected and the petitioner was asked to remit the amount. 25. As observed above, there is no dispute that the petitioner had availed the scheme within the prescribed period and hence though it is entirely different matter that its category came to be changed from SVLDRS-1 to SVLDRS-3, as aforesaid. 26. It is yet not in dispute that the petitioner who was engaged in the hospitality business by running a hotel, was adversely affected by COVID-19. It is further not in dispute that the benefit of the scheme was extended by the government from time to time and lastly it was extended up to 30.09.2020 for the ....
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....e courts/tribunals including this Court w.e.f. 15-3-2020 till further orders. On 8-3-2021 [Cognizance for Extension of Limitation, In re, (2021) 5 SCC 452 : (2021) 3 SCC (Civ) 40 : (2021) 2 SCC (Cri) 615 : (2021) 2 SCC (L&S) 50], the order dated 23-3-2020 [Cognizance for Extension of Limitation, In re, (2020) 19 SCC 10 : (2021) 3 SCC (Cri) 801] was brought to an end, permitting the relaxation of period of limitation between 15-3-2020 and 14-3-2021. While doing so, it was made clear that the period of limitation would start from 15-3- 2021. 3. Thereafter, due to a second surge in Covid-19 cases, the Supreme Court Advocates-on-Record Association (Scaora) intervened in the suo motu proceedings by filing Miscellaneous Application No. 665 of 2021 seeking restoration of the order dated 23-3-2020 [Cognizance for Extension of Limitation, In re, (2020) 19 SCC 10 : (2021) 3 SCC (Cri) 801] relaxing limitation. The aforesaid Miscellaneous Application No. 665 of 2021 was disposed of by this Court vide order dated 23-9-2021 [Cognizance for Extension of Limitation, In re, 2021 SCC OnLine SC 947], wherein this Court extended the period of limitation in all proceedings before the courts/tr....
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....of 90 days from 1-3-2022. In the event the actual balance period of limitation remaining, with effect from 1-3-2022 is greater than 90 days, that longer period shall apply. 5.4. It is further clarified that the period from 15-3- 2020 till 28-2-2022 shall also stand excluded in computing the periods prescribed under Sections 23(4) and 29-A of the Arbitration and Conciliation Act, 1996, Section 12-A of the Commercial Courts Act, 2015 and provisos (b) and (c) of Section 138 of the Negotiable Instruments Act, 1881 and any other laws, which prescribe period(s) of limitation for instituting proceedings, outer limits (within which the court or tribunal can condone delay) and termination of proceedings. 6. As prayed for by the learned Senior Counsel, MA No. 29 of 2022 is dismissed as withdrawn. 28. So also, under identical circumstances, the Madras High Court, Bombay High Court, Gujarat High Court and Delhi High Court have held that though the notification dated 14.05.2020 extended the time limit for payment under the SVLDRS up to 30.06.2020, having regard to the prevailing COVID-19 pandemic, the petitioners-assessees therein would be entitled to extension of time in the fol....
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.... not in dispute. 5. In W.P.No.19919 of 2020, the position is different, insofar as, while Forms SVLDRS-1, 3 and 4 had been filed/issued on 19.12.2019, 16.03.2020 and 09.04.2020 respectively, the petitioner appears to have sat tight on the remittance till 17.10.2020, when it made a representation to the respondents seeking extension of time to remit the amount. 6. Though there is proof of despatch of this communication, there is no proof of receipt of the same. However, the receipt of this, if at all, becomes W.P.Nos.19919 of 2020, 2942 of 2021 & 17428 of 2022 irrelevant in light of a decision of this Court in N.Sundararajan v. Union of India [W.A.Nos.2047 to 2098 of 2021 dated 26.08.2021]. Those writ appeals had been filed challenging the order of the learned Single Judge dated 15.06.2021 who had dismissed writ petitions seeking extension of the period for remittance on par with the extension granted by the Income Tax Authorities. 7. To be noted that, Schemes for settlement of legacy arrears had been notified both under Direct and Indirect Tax statutes. However, there had been a variation between the final dates for receipt of payments under the two Schem....
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.... Srinivas, appearing for the respondents, submits that the aforesaid order has attained finality. Though the Department had contemplated a challenge to the same, no appeal had materialised on account of low tax effect, he says. The Circular providing for pecuniary limit on filing of appeals, sets out certain exclusions, where, despite the monetary threshold, the Revenue could still pursue matters in some situations, including if the matters involved large scale revenue ramifications or dealt with issues of a recurring nature. The W.P.Nos.19919 of 2020, 2942 of 2021 & 17428 of 2022 decision of the Revenue not to challenge order dated 26.08.2021, despite the exclusions set out in the Circular, to my mind, indicates a conscious view to accept the ratio of the aforesaid order, which I will then, and consequently, proceed to apply in the present writ petition as well. 11. In the facts and circumstances in W.P.No.2942 of 2021, since the petitioner has admittedly approached the respondents and expressed its readiness to remit the amount on 31.07.2020, it is entitled to extension of time and is permitted to make the remittance along with interest @ 15% from 01.07.2020 to date of r....
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....extend the outer time limit to settle the dues, which was rejected by the competent authority. Aggrieved by the same, the petitioner filed a Writ Petition in W.P.No.14454 of 2020 before this Court, wherein, vide order dated 21.06.2021, this Court directed the petitioner to remit the balance amount with 15% interest from 1.7.2020. Pursuant to the said order, the petitioner, vide challan dated 25.6.2021 remitted the balance tax amount of Rs. 3,17,090/- with interest at Rs. 46,780/-. Later, this Court, vide order dated 29.06.2021, after taking note of fact that the petitioner complied with the order by remitting the tax amount, allowed the Writ Petition, by permitting the petitioner to make a representation for acceptance of his application under SVLDR Scheme and on such representation being made, the Board was directed to consider the same and pass appropriate orders within four weeks. However, the Board, vide letter in File No. CBIC-90224/3/2021-O/o- US(CX-VI)-CBEC dated 27.08.2021, rejected the representation. Hence the Writ Petition. 3. A counter affidavit has been filed on behalf of the respondents, the petitioner has exercised option under SVLDR Scheme under which, a su....
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....ted the representation, which cannot be sustained. He would rely upon the decision reported in "M/s.Though Blurb versus UOI" (W.P.No.871 of 2020, dated 27.10.2020 Bombay High Court); "Eureka Fabricators Pvt.Ltd. Versus UOI" (W.P.No.3510 of 2019-Bombay High Court), wherein, the relief was granted in similar matter relating to delayed payment under SVLDR Scheme. He also relied upon a decision of this Court in W.A.No.2019 & 2098 of 2021, dated 26.08.2021. 6. On the other hand, Mr.V.Sundareswaran, learned Senior Standing Counsel for the respondents would submit that the petitioner has failed to make the payment on or before 30.06.2020 and therefore, cannot get the benefit of SVLDR Scheme. He would further submit that it is settled proposition of law that a person, who wants to avail the benefit of a particular scheme, has to abide by the terms and conditions of the scheme scrupulously. He pointed out that as there was no statutory provision to make any payment under the scheme beyond the stipulated period and once the petitioner failed to make the payment within the due date, he is not eligible to get the benefit of SVLDR Scheme. He also submitted that pursuant to the directio....
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....d is directed to consider the same and pass appropriate orders within a period of four (4) weeks from receipt thereafter." 11. It is pertinent to note that as against the above orders of this Court, viz., dated 21.06.2021 and 29.06.2021, the respondents have not preferred any appeal nor raised any objections before the learned Judge, permitting the petitioner to make the payment under SVLDR scheme and to make representation for acceptance of the application under SVLDR Scheme. Therefore, by virtue of orders of this Court only, the petitioner made payment along with interest and when a representation was made for acceptance of the payment, unfortunately the respondents passed impugned order, dated 27.08.2021 rejecting the representation contrary to the orders of this Court. 12. A plain reading of the above orders makes it explicit that this Court had accepted the plea raised by the petitioner and permitted to make payment under SVLDR Scheme and after payment, directed the Board to consider the representation of the petitioner for acceptance of the payment under SVLDR Scheme and pass appropriate orders. It is a positive order and no contrary view could be taken, how....
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....scheme and with regard to the extension of time for making payment of tax, is directory in nature. If it is mandatory, there will not be any delegation with regard to the Central Government to fix the time limit for availing the scheme and payment of tax. Since there is delegation with regard to the Central Government, it will only be directory in nature and that is the reason why the Central Government depends upon the situation prevailing in the country and extended the time limit from time to time. 19. It would be pertinent to mention here that the Hon'ble Supreme Court, suo motu, vide order dated 23.03.2020 in W.P.No.3 of 2020, had extended the mandatory provisions of limitation under various Acts, due to the reason of COVID pandemic from 01.03.2020 to 28.02.2022. Pursuant to the same, the respondent had also extended the time limit by considering the COVID pandemic situation. 20. Further, there is no doubt that if the provisions are mandatory in nature, this Court normally will not interfere and pass orders against the said substantive provisions of law. Since the provisions are directory in nature, based on the prevailing situation and the inability of t....
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....f the residential flats constructed for the land owners in terms of a Joint Development Agreement and later, the petitioner paid a sum of Rs.44,29,032/- on 02.05.2019, which was not accepted by the Audit Officers, which culminated into issuance of a show cause notice, dated 3.9.2019 proposing to demand Service Tax at Rs.70,82,343/- along with interest and penalty. The said show cause notice also proposed to appropriate the amount of Rs.44,29,032 which was already paid by the petitioner. Thereafter, the Joint Commissioner of GST and Central Excise, Coimbatore, vide Order-in-Original No.09/2019-JC dated 22.11.2019, confirmed the entire demand of Service Tax proposed in the show cause notice. 3. While so, the Union Budget presented a Scheme, viz., Sabka Vishwas Legacy Dispute Resolution Scheme, 2019 (in short, SVLDR Scheme) was introduced to settle the disputes relating to legacy laws, viz., Service ax, Central Excise Duty, etc., which are pending at various levels, by filing a declaration in Form SVLDRS-1 in the electronic portal. The petitioner opted to file a declaration under SVLDRS Scheme in respect of the Service Tax dispute and settle the same and accordingly filed dec....
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....r further reference or consideration for extension. As there was no statutory provision to make any payment under the scheme beyond the stipulated period, the request made by the petitioner, cannot be entertained. Therefore, since the petitioner failed to avail the benefit of SVLDR Scheme in time, the petitioner is liable to pay the entire arrears of tax with penalty. With these averments, the respondents sought for dismissal of the writ petition. 6. Mr. G. Natarajan, learned counsel for the petitioner would submit that pursuant to the introduction of SVLDR Scheme, the petitioner has availed the benefit by filing declaration vide Form SVLDRS-1 and the Designated Committee also issued Form SVLDRS-3, as per which, the petitioner was liable to pay Rs.14,98,835.20 on or before 14.3.2020. Later, considering the pandemic situation, the Government extended the time limit for making payment under the scheme till 30.06.2020. However, due to financial crisis suffered by the petitioner due to lock down owing to pandemic, the petitioner could not make the payment. He would contend that the Hon'ble Supreme Court in its suo motu Writ Petition (Civil) No.3/2020, vide order, dated 23.....
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.... that as there was no statutory provision to make any payment under the scheme beyond the stipulated period, though the petitioner made payment by way of challan on 1.3.2021, the same could not be accepted and accordingly, the respondents have rightly rejected the request made by the petitioner, which requires no interference. Hence, he sought for dismissal of the Writ Petition. 8. Heard the learned counsel for the petitioner and the learned Senior Standing counsel for the respondents and perused the entire materials placed on record. 9. In the present case, it is clear that by virtue of the Finance Bill, 2019, the SVLDR scheme was declared. Thereafter, the respondent had issued Notification No.04/2019 dated 21.08.2019 stating that the Assessees can avail the said scheme from 01.09.2019 to 31.12.2019. Subsequently, by virtue of Notification No.07/2019 dated 31.12.2019, the said period to avail the scheme was extended up to 15.01.2020. Pursuant to the same, the petitioner had availed the scheme before 15.01.2020 and filed Form SVLDRS 1. The said Form was accepted and further, the Form SVLDRS 3 was also issued by the respondent to the petitioner on 13.02.2020. Howev....
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....tension of time for making payment of tax, is directory in nature. If it is mandatory, there will not be any delegation with regard to the Central Government to fix the time limit for availing the scheme and payment of tax. Since there is delegation with regard to the Central Government, it will only be directory in nature and that is the reason why the Central Government depends upon the situation prevailing in the country and extended the time limit from time to time. 15. It would be pertinent to point out here that the Hon'ble Supreme Court, suo motu, vide order Cognizance (supra) dated 23.03.2020, had extended the Mandatory provisions of limitation under various Acts due to the reason of COVID pandemic from 01.03.2020 to 28.02.2022. Pursuant to the same, the respondent had also extended the time limit by considering the COVID pandemic situation. 16. Further, there is no doubt that if the provisions are mandatory in nature, this Court normally will not interfere and pass orders against the said provisions. As far as if the provisions are directory in nature, certainly the prevailing situation and the inability of the petitioner due to the said pandemic woul....
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....f the view that the amount, which was paid by the petitioner on 02.03.2021 shall be consider as the amount paid under the SVLDRS Scheme and hence, the Department is bound to issue the Form SVLDRS- 4 with regard to the discharge of liabilities. 21. Under these circumstances, this Court is of the view that the application, filed on 13.02.2023 consequent to the payment made by the petitioner, has to be accepted under the scheme by the respondent and in such view of the matter, this Court has no hesitation to direct the respondent to issue Form SVLDRS-4 to discharge the tax liabilities within a period of 30 days from the date of receipt of copy of this order. 22. Accordingly, the Writ Petition is allowed. The respondents are directed to accept the payment of Rs.14,98,836/- made by the petitioner under SVLDRS-3 on 01.03.2021. The petitioner is directed to pay interest at 15% p.a. on 14,98,836/- from 01.07.2020 till the date of payment, within a period of four weeks from the date of receipt of a copy of this order, failing which, the benefit granted under this order will automatically cease to operate. On such payment being made by the petitioner, the respondents are to....
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....g upon Petitioner to pay the demand along with interest and penalty. 6. Petitioner submits that in paragraph 4.20 of the petition, they have averred that on account of technical glitches on the portal, they could not make the payment before 30 June 2020. Petitioner further submitted that they had addressed a letter dated 11th September 2021 to Respondents bringing to their notice the technical difficulties faced by them in making the payment. However, Respondents did not reply to the said letter. Petitioner submits that there is no benefit accruing to them in delaying the payment by one day and, therefore, no malafide can be attributed. Petitioner, inter alia, has relied upon following decisions in support of its submissions that the declaration made under SVLDR Scheme be accepted and Respondents be directed to issue final certificate in SVLDRS 4 Form. Those are:- (i) Innovative Antares Vs. Union of India & Ors.1, (ii) Arjun Rampal Vs. Union of India & Ors.2, (iii) Sitec Labs Ltd. Vs. Union of India3, (iv) Reliance Infrastructure Vs. Union of India4. 7. Per contra, Respondents have opposed the petition on the ground that admitte....
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....10. The payment whether made under a challan generated under service tax or under SVLDR Scheme would not make any difference, inasmuch as, admittedly in both the cases, it is only the correct challan which has not been filled, but the payment has admittedly been received in the coffers of Respondents', i.e., Union of India. It is settled position that procedural irregularities cannot come in the way of substantial justice. Looking at the objective for which the SVLDR Scheme was introduced and the fact that there was a technical glitch in making the payment cannot be ignored. Furthermore, Petitioner could not be said to have had any malafide intention in delaying the payment by one day, since the challan generated stated the expiry date as 1 st July 2020. Petitioner was, therefore, under a bonafide belief that he could make the payment on 1st July 2020 which admittedly he has paid on said date. 11. In our view, therefore, on the facts of the present case denying the benefit of SVLDR Scheme would not only be contrary to the objective of the Scheme, but also would be injustice to Petitioner declarant who otherwise is eligible. The decision relied upon by Respondents in Ya....
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....6 The Hon'ble Delhi High Court in In IA Housing (Supra) while referring the Vivad Se Vishwas Scheme had held as under : - 17. Moreover, the principle of a judgment rendered in a normal circumstance cannot be applied to abnormal and extraordinary circumstances such as Covid wherein the organisation of the Petitioners were affected due to death of a Director and that too when the Petitioners in no manner derived any benefit because of delay. THOUGH RESPONDENTS HAVE NO POWER TO CONDONE THE DELAY IN PAYMENT, YET THIS COURT IN EXTRAORDINARY WRIT JURISDICTION CAN PASS ANY ORDER NECESSARY TO REMEDY INJUSTICE. 18. Though this Court is in agreement with the submission of learned counsel for the respondents that the power to condone the delay with regard to delay in payment is not vested with the Departmental Authorities, yet this Court under its inherent powers in extraordinary writ jurisdiction under Article 226 of the Constitution of India can pass any order necessary to remedy the injustice. The Supreme Court in B.C.Chaturvedi v. Union of India, (1995) 6 SCC 749 has held "It deserves to be pointed out that the mere fact that there is no provision parallel to Ar....
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....pported by justifiable reasons, this Court is of the opinion that the cause of substantial justice deserves to be preferred, and this unintentional delay deserves to be condoned. This approach will only further the object and purpose of the VSV Act." 29. A perusal of the impugned order would indicate that the sole ground on which the case of the petitioner has been rejected by the respondents is that the scheme had come to an end. However, in light of the judgment of the Hon'ble Supreme Court with regard to the extension of limitation referred to herein above and the coupled with the fact that the judgments rendered by the Hon'ble High Courts of Madras, Bombay, Gujarat and Delhi, granting benefits of SVLDRS in favour of the petitioner/assessee therein on the ground of the prevailing COVID-19 pandemic, even cases where payments were made subsequent to 30.06.2020, we are of the considered view that the impugned order rejecting the case of the respondents cannot sustain and deserves to be quashed and necessary directions are required to be issued to the concerned respondents to accept the payment made by the petitioner and issue discharge certificate in its favour. 30. The afore....
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....time limit for availing the scheme and payment of tax. Since there is delegation with regard to the Central Government, it will only be directory in nature and that is the reason why the Central Government depends upon the situation prevailing in the country and extended the time limit from time to time. 19. It would be pertinent to mention here that the Hon'ble Supreme Court, suo motu, vide order dated 23.03.2020 in W.P.No.3 of 2020, had extended the mandatory provisions of limitation under various Acts, due to the reason of COVID pandemic from 01.03.2020 to 28.02.2022. Pursuant to the same, the respondent had also extended the time limit by considering the COVID pandemic situation. 20. Further, there is no doubt that if the provisions are mandatory in nature, this Court normally will not interfere and pass orders against the said substantive provisions of law. Since the provisions are directory in nature, based on the prevailing situation and the inability of the petitioner due to the said pandemic would be the factors that have to be considered by this Court to pass an appropriate order. In the present case, no doubt that the petitioner had paid the amount ....