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TMI Blog2015 (12) TMI 1451X X X X Extracts X X X X X X X X Extracts X X X X ..... rse of audit, the audit party noticed that the assessee was also providing renting of immovable property service, but had not taken registration for this service nor had included this service in the service tax registration certificate and also not paid the service tax for the renting of immovable property service. Hence the matter was under consideration of audit as on 1.3.2013, which is not yet being over. Therefore, as per Section 106(2) of the Finance Act, the petitioner is not entitled to get the benefit of the Service Tax Voluntary Compliance Encouragement Scheme, 2013 (VCES), hence the fourth respondent, rightly in this case, has rejected the application dated 21.6.2013 holding that the petitioner is not entitled to get the benefit of the VCES. Court is not inclined to interfere with the impugned order of rejection of the declaration filed by the petitioner. Accordingly, the writ petition fails - Decided against assessee. - W. P. No. 859 of 2015 - - - Dated:- 18-12-2015 - T. Raja, J. For the Appellant : Mr. M. K. Kabir Senior Counsel for Mr.S.Ashok Kumar For the Respondent : Mr. V. Sundareswaran Senior Panel Counsel JUDGEMENT M/s Hotel Southson Priva ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... enquiry and personal hearing with regard to VCES. Accordingly, the petitioner appeared before the fourth respondent on 12.9.2013. But during the meeting, the petitioner was surprised to know that the fourth respondent had mistaken with the fact that the inspection for audit conducted on 23.2.2013 and 25.2.2013 in their premises under the category of accommodation service and restaurant service were not finalised on the cut-off date, namely, 1.3.2013, hence, on the sole ground that the audit was not completed, rejected their declaration, which is impermissible. The learned senior counsel for the petitioner submitted that the rejection of the declaration of the petitioner made by the fourth respondent is against the circular dated 25.11.2013 issued by the Government of India, Ministry of Finance, Department of Revenue clarifying the provisions of Section 106(2) of the Finance Act, 2013 that if an inquiry, investigation or audit pending as on 1.3.2013 was being carried out for the period from 2008-11, the benefit of VCES would be eligible in respect of tax dues for the year 2012, namely, period not covered by the inquiry, investigation or audit. Therefore, when the said circular make ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... entitled to get the benefit of VCES, as the petitioner has no other legal remedy. 4. Per contra, Mr.V.Sundareswaran , learned senior panel counsel for the respondents, refuting all the above contentions, urged this Court to dismiss the writ petition, on the ground that the petitioner is not entitled to file the declaration for the services which are found by the initiation of audit, but can file the declaration voluntarily for the one which was not covered by the audit, inasmuch as the scheme of the Act is clear and manifest in itself that the disclosure should be voluntary and self before the initiation of the audit and not thereafter. This apart, in the present case, the provision of renting of immovable property service was unearthed during the course of audit on 25.2.2013 and 28.2.2013. The said audit has not been completed on the cut-off date, namely, 1.3.2013. Since the renting of immovable property service was also under the scrutiny of audit, the petitioner is not entitled to file the declaration, hence it was rejected. Adding further, he submitted that originally internal audit had visited the premises of the petitioner for the service tax audit and conducted audit ins ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the order in fine tune with Section 106(2) of the Finance Act, 2013, he pleaded. 5. Heard both sides. 6. The question that needs to be answered in the present case is whether the petitioner, who is an assessee for the service tax payable for the years 2010- 11, 2011-12 and 2013-13, is entitled to file the declaration on 21.6.2013 before the fourth respondent seeking to declare that the petitioner is entitled to get the benefit of VCES in the light of Section 106(2) of the Finance Act, 2013. In this context, it is relevant to extract Section 106(2) of the Finance Act, 2013, as follows:- 106.( 2) Where a declaration has been made by a person against whom,-- (a) an inquiry or investigation in respect of a service tax not levied or not paid or short-levied or short-paid has been initiated by way of-- (i) search of premises under section 82 of the Chapter; or (ii) issuance of summons under section 14 of the Central Excise Act, 1944, as made applicable to the Chapter under section 83 thereof; or (iii)requiring production of accounts, documents or other evidence under the Chapter or the rules made thereunder; or (b) an audit has been initiated, and such ..... X X X X Extracts X X X X X X X X Extracts X X X X
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