Madras High Court
N.Sundararajan (Former Partner) vs Union Of India on 29 June, 2021
Author: Anita Sumanth
Bench: Anita Sumanth
W.P. No.14454 of 2020
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 29.06.2021
CORAM
THE HONOURABLE DR. JUSTICE ANITA SUMANTH
W.P. No.14454 of 2020
N.Sundararajan (Former Partner),
M/s.Genupro Yarn Agencies
38/24, New Street, Ammapet,
Salem 636 003. ...Petitioner
Vs.
1.Union of India,
Rep. by Secretary, Department of Revenue,
Ministry of Finance, North Block,
New Delhi – 110 001.
2.The Central Board of Indirect Taxes and Customs,
Department of Revenue,
Represented by its Chairman,
Ministry of Finance, Government of India,
North Block, New Delhi.
3.The Deputy Commissioner,
Member, Designated Committee
under Sabka Vishwas (Legacy Dispute Resolution) Scheme,
GST Bhawan, No.1, Foulkes Compound,
Anaimedu, Salem 636 001.
1
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W.P. No.14454 of 2020
4.The Assistant Commissioner of Central Excise & GST,
Salem-I Division,
106, 3rd Floor, Varalakshmi Orchid,
Ramakrishna Road,
Salem 636 007. ...Respondents
Prayer: Writ Petition filed under Article 226 of the Constitution of India praying to
issue Writ of Mandamus directing the 1st Respondent to accept the payment of
Rs.3,17,090/- in terms of SVLDRS (Sabka Vikas Legacy Dispute Resolution
Scheme) Form 3 in compliance under Section 127 of the Finance (No.2) Act, 2019
towards full and final settlement of tax dues and to issue a Certificate of Settlement
in SVLDRS (Sabka Vishwas Legacy Dispute Resolution Scheme) Form 4.
For Petitioner : Mr.V.Parthiban
For Respondents : Mr.V.Sundareswaran
Senior Panel Counsel
********
ORDER
Pursuant to the liberty granted to the petitioner, memo dated 28.06.2021 has been filed to the effect that the petitioner has remitted the amount of Rs.3,63,870/-
and the tax challan dated 22.06.2021 has also been enclosed.
2. On 21.06.2021, I had passed the following order in this case:
I have had occasion to consider a similar issue as arising in this writ petition and in W.P.No.9769 of 2020, I have passed the following order:2
https://www.mhc.tn.gov.in/judis/ W.P. No.14454 of 2020 The petitioner has sought a mandamus directing the first respondent, the Union of India, represented by Secretary to Department of Revenue to accept payment of Rs.5,04,873/- pursuant to issuance of Form 3 under the Sabka Vishwas (Legacy Dispute Resolution) Scheme, 2019 (in short 'Scheme') in terms of Section 127 of the Finance (No.2) Act, 2019 towards full and final settlement of tax dues and to issue a certificate of Settlement in Form 4.
2. The relevant dates and events in this matter are as follows:
i) The petitioner was in receipt of Order-in-Original dated 21.05.2019 raising a demand of Rs.13,64,516/-.
ii) An appeal was filed before the 5th respondent, who is the Commissioner of GST and Central Excise (Appeals), Coimbatore.
iii) An application was filed on 15.12.2019 opting for the Scheme and Form 1, being the acknowledgement for receipt of application by the Department, was issued.
iv) Form 2 was issued to the petitioner on 13.01.2020 post scrutiny of the application.
v) Since there was difference in the tax computed by the petitioner and that computed by the respondent, the petitioner raised a query in Form 2A seeking a personal hearing to explaining its position, on 18.01.2020.
vi) A personal hearing was afforded on 26.02.2020.
vii) On 06.03.2020, Form 3 was issued by the Department quantifying the demand at a sum of Rs.5,04,873/-.
viii) The quantification of demand has attained finality and there is no dispute on this score raised by the petitioner.
ix) The admitted position is the petitioner was required to pay the aforesaid amount within a peirod of of 30 days in terms of the Scheme, failing which the application lapses.
x) The period of 30 days expired on 05.04.2020.3
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xi) In the interim, the Country was locked down on account of the COVID- 19 pandemic invoking the provisions of the Disaster Management Act,2005. This lock down continued intermittently from 25.03.2020.
3. One cannot argue or quarrel with the difficulties that the citizens were facing on account of the pandemic, which is yet on-going. In recognition of these difficulties, the Scheme was itself amended to state that the period for payment would stand extended unilaterally till 30.06.2020. Thus the original time of 30 days from issuance of Form 3 has been overridden by the Department itself in recognition of the present difficulties.
4. The petitioner did not remit the amount before 30.06.2020, instead chosing to file the present Writ Petition expressing its readiness and undertaking in ground (D) of the Writ Petition that it would pay the amount quantified within any time that may be granted by this Court. It is thus clear that as on the date of execution of the affidavit filed in support of the Writ Petition, which is 09.07.2020, the petitioner has been prepared to pay the amount of duty. Be it noted that it was unable to proceed to remit the amount, since the portal did not facilitate receipt of any amount under the Scheme after 30.06.2020. The delay in effecting remittance is a period of 9 days, at the maximum.
5. The Gujarat High Court in Messrs.Falcon Fighter Force Services Pvt. Limited V. Union of India (R/Special Civil Application No.15950 of 2020, order dated 23.12.2020), in a similar situation as before me now, directed the petitioner to deposit the amount of duty within a fixed time frame and to thereafter approach the Chairman, Central Board of Indirect Taxes, with a request to accept the payment as made under the Scheme.
6. At paragraph 11, the Bench has expressed its view that some viable solution in such cases be found by the Board. No solution has been found and or placed before this Court till date, despite a period of six months having elapsed from the date of that decision.
7. The Board has also issued an Instruction in F.No.267/65/2020-CX-8 dated 14.07.2020 recognising the position that there were several declarants who were unable to remit the quantified amounts of duty under the Scheme before 30.06.2020 on account of the difficulties they were facing and who were likely to pay in the near future. The very fact that the Board states that the declarants were 'likely to pay in the near future' indicates a possibility that the the Board might be inclined to accept the amounts even after 30.06.2021, of course conditional upon 4 https://www.mhc.tn.gov.in/judis/ W.P. No.14454 of 2020 any stipulations that it may have in this regard, including the levy of interest. The Zonal Officers has been requested to conduct a survey of the estimated amounts still recoverable and report the same to the Board.
8. The Hon'ble Supreme Court in the case of Satyakam Arya V. Union of India and another (W.P.(c) No.178 of 2021 dated 04.03.2021 considered the following prayers in a Writ Petition filed under Article 32 of the Constitution of India:
a. Issue a Writ, Order or Direction in the nature of Mandamus to extend the GST Amnesty Scheme effected through its Notification bearing No. 52/2020 dated 24.05.2020 for two months. WP(C) 178/2021 2 b. Issue a Writ, Order or Direction in the nature of Mandamus to refund the exhibiting amount collected under the garb of late fee towards late filing of GST return for the period of lockdown to all Assessee who have paid the late fee.
c. Issue a Writ, Order or Direction in the nature of Mandamus to the Respondent to put the upper cap on Late Fees to an extent of Rs. 500/- per return.
d. Issue a Writ, Order or Direction in the nature of Mandamus to exempt the late fee that is being charged for the lockdown period starting from 25.03.2020 till 30.06.2020 by the Respondent on account of delayed filing of GST return by the Assesses.
9. The Bench held that the reliefs sought touch upon the realm of policy and they were thus not inclined to entertain the Writ Petition. The prayer therein seeks an extension of the Amnesty Scheme, a cap on the late fees to be collected, exemption from collecting late fee and refund of amounts calculated, all in all, a re-writing of the Scheme itself.
10. In the present case, the facts as noticed above would indicate that the petitioner has complied with the Scheme requirements substantially in time, except for last stage of remittance of the quantified amount, where there was a delay of 9 days.
11. This is an issue which several assessees all over the Country are facing and it is time that the Board apply its mind to the same and came out with a viable solution.
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12. In the light of the discussion as aforesaid, I am inclined to pass the following order:
i) The petitioner is permitted to remit the amount quantified in Form 3 along with interest at the rate of 15%, in terms of Notification No.13 of 2016 dated 01.03.2016 and Section 75 of the Finance Act, 1994 under which service tax is levied, from 01.07.2020 till date of remittance before the third respondent, within a period of one (1) week from today.
ii) The above permission does not, by any stretch, indicate that the prayer of the petitioner has been accepted and the relief sought, granted. It is only a measure to enable the petitioner to prove its bona fides.
iii) The counter filed by the respondents does not anywhere indicate the stand of the first respondent as to what their decision is in such matters. A decision may be taken by the Board and circulated after serving a copy upon the petitioner, prior to the next date of hearing.
13. List on 29.06.2021.
2. This matter is similar to that writ petition except certain differences in dates and the above order may thus be read as passed in the present case as well. This writ petition has been filed by the petitioner on 28.09.2020. Thus, the delay arising in this matter is for a period of nearly three months. Let the petitioner remit the amount under the scheme, which is an amount of Rs.3,17,090/- along with interest at 15% computed from 01.07.2020 till date of payment within a period of one week from today.
3. List on 29.06.2021 as a successive item to W.P.No.9769 of 2020.
3. I see no reason to keep this writ petition pending any more in the light of the position that the petitioner has, according to it, remitted the balance of the amount under its declaration. The petitioner is permitted to make a representation for acceptance of its application under the Sabka Vishwas (Legacy Dispute Resolution) 6 https://www.mhc.tn.gov.in/judis/ W.P. No.14454 of 2020 Scheme, 2019 within a period of one week from today, accompanied by a copy of this order to the Board and the Board is directed to consider the same and pass appropriate orders within a period of four (4) weeks from receipt thereafter.
4. This writ petition is disposed. No costs.
29.06.2021 ska Index: Yes Speaking order 7 https://www.mhc.tn.gov.in/judis/ W.P. No.14454 of 2020 DR. ANITA SUMANTH, J.
ska To
1.Union of India, Rep. by Secretary, Department of Revenue, Ministry of Finance, North Block, New Delhi – 110 001.
2.The Central Board of Indirect Taxes and Customs, Department of Revenue, Represented by its Chairman, Ministry of Finance, Government of India, North Block, New Delhi.
3.The Deputy Commissioner, Member, Designated Committee under Sabka Vishwas (Legacy Dispute Resolution) Scheme, GST Bhawan, No.1, Foulkes Compound, Anaimedu, Salem 636 001.
4.The Assistant Commissioner of Central Excise & GST, Salem-I Division, 106, 3rd Floor, Varalakshmi Orchid, Ramakrishna Road, Salem 636 007.
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