9911796707
TMI Blog2014 (9) TMI 879X X X X Extracts X X X X X X X X Extracts X X X X ..... rder at Annexure "A" and that liberty may be reserved to the petitioner to seek other prayers in an appropriate proceeding. Learned counsel for the respondents have no objections to the submission made on behalf of the petitioner. In the circumstances, the legality and correctness of the impugned order dated 31/12/2013, is considered in these writ petitions. 2. The facts germane to the disposal of these writ petitions are that the respondents have initiated Service Tax Voluntary Compliance Encouragement Scheme, 2013, under the provisions of the Finance Act, 2013 [hereinafter, referred to as the "Scheme"]. A copy of the Scheme is annexed at Annexure "B" to the writ petition. The petitioner filed its application under Section 106 of the said ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion 73 or under Section 73A of the Act. It is the contention of the petitioner that the earlier proceedings was one under Section 73 of the Act and that Section 73A of the Act was not at all invoked and that for the subsequent period, no notice was issued by the Department and hence, under the main provision of sub-section (1) of Section 106 of the Act, the application of the petitioner had to be considered. 7. Per contra, learned counsel for the respondents while drawing my attention to the second proviso have contended that the earlier order of determination pursuant to show-cause notice dated 19/03/2010 is a bar for consideration of the case of the petitioner under the Scheme. Much stress has been laid on the second proviso to sub-sect ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ch inquiry, investigation or audit is pending as on the 1st day of March, 2013, then, the designated authority shall, by an order, and for reasons to be recorded in writing, reject such declaration." 8. Sub-section (2) of Section 106 envisages a situation under which there can be a rejection of the declaration made by assessee. But sub-section (1) of' Section 106 deals with a situation where the consideration of the application of the assessee has to be made. In this regard, the focus of attention in this case is on the second proviso to sub-section (1) of Section 106, which states that if there is a notice or order of determination, which has been issued to a person in respect of any period on any issue, no declaration shall be made w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is 01/10/2007 up to 31/12/2012. That period cannot be related to any period in respect of which an order has been passed by the authority under Section 73 of the Act. If there were any dues between the aforesaid dates, then the eligibility to file the application under the Scheme would arise provided no order was passed prior to the enforcement of the Scheme on any issue. Therefore, linking the period of tax dues under the Scheme with the period in respect of which the order dated 23/12/2012 has been passed in petitioner's case is not correct as that order was prima facie not in respect of Section 73A of the Act. 10. In the result, the writ petition is allowed by quashing the impugned order. The matter is remanded to the first respond ..... X X X X Extracts X X X X X X X X Extracts X X X X
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