9911796707
TMI Blog2016 (7) TMI 560X X X X Extracts X X X X X X X X Extracts X X X X ..... from VCES, 2013 and the immunity provided under Section 108(1) aforesaid has been withdrawn. Petitioner is challenging the order dated 7th April, 2014 passed by the respondent authorities. 2. Arguments canvassed by the counsel for the petitioner: ● Learned counsel appearing for the petitioner submitted that under the VCES, 2013, declaration was made by this petitioner of Service Tax liabilities amounting to Rs. 3,48,39,667/- for the period from October, 2007 to December, 2012. This declaration was made on 11th July, 2013. Fifty per cent of the aforesaid amount was to be deposited on or before 31st December, 2013. Out of this 50 per cent amounts, i.e. Rs. 1,74,19,834/-, petitioner deposited Rs. 1,14,20,000/- by 31st December, 2013 and for remaining Rs. 60,00,000/-, a post-dated cheque dated 30th January, 2014 was given to the respondent authorities on 31st December, 2013. Interest upon belated payment has also been made by this petitioner and aforesaid cheque was also encashed on 5th February, 2014. Thus, there was no mala fide intention on the part of this petitioner. ● The petitioner was found eligble under the VCES, 2013 and no prejudice has been caused to the resp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er, 2014 to make the payment of rest of the amount with interest. ● It is submitted by the counsel for the respondents that the Scheme floated by the respondent is a policy decision of the Union of India. Already leniency has been shown by the Union of India in favour of those declarants, who have missed the bus or opted to make voluntary compliance with respect to the payment of the Service Tax liabilities from the year 2007 onwards. Further, under VCES, 2013, the legally payable amount has been divided into two parts. First instalment of minimum 50% should be deposited on or before December, 2013 and the remaining amount ought to be paid on or before June, 2014. It is further submitted by the counsel appearing for the Union of India that further liberty has been given to the declarant that if there is any delay in making payment of second instalment, an assessee can make the payment on or before 31st December, 2014 with interest i.e. the same amount shall now be deposited with interest. Thus, enough leniency has been shown under the VCES, 2013 for the declarant to declare the service tax liabilities voluntarily and to make the payment liberally in two instalments. Further ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... llegally, that does not mean that this petitioner is legally entitled to get the benefit of the scheme even though the clauses of the VCES, 2013 is violated. ● It is further submitted by the counsel for the respondents that there is no question of mala fide intention of the respondents as there is no authority with the respondents to allow any deviation from the guidelines provided in the VCES, 2013. Such type of voluntary discloser scheme, by itself is a leniency shown by the respondents. As provided under VCES, 2013, even in the methodology relating to the payment also there is leniency looking to the past liabilities of a declarant and the payment was to be made within one year as provided. Every declarant cannot have his own interpretation of the provisions of the VCES, 2013 and his own style of making payment of service tax so declared by him. If the declarant wants to get the benefit of the VCES, 2013 the declarant has to obey all the clauses of the scheme. This aspect of the matter has also been properly appreciated by the Assistant Commissioner, Central Excise and Service Tax, Division-IV, Jamshedpur, while passing the order dated 7th April, 2014 (Annexure 7) and hen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of such dues to the declarant in such form and in such manner as may be pescribed. (Emphasis supplied) (II) In view of the aforesaid provisions of VCES, 2013, this petitioner declared service tax liabilities for the period running from October, 2007 to December, 2012 amounting to Rs. 3,48,39,667/-. As per Section 107(3) as quoted above, at least 50% of this liability shall be deposited on or before December, 2013. Thus, the petitioner was liable to deposit Rs. 1,74,19,834/-, whereas he deposited Rs. 1,14,20,000/-. Thus, there was a short payment of Rs. 60,00,000/-. It further appears from the facts of the case that this petitioner-declarant under the VCES, 2013 gave a post-dated cheque on 31st December, 2013 for Rs. 60,00,000/- to the respondents. This post-dated cheque was of 30th January, 2014, which was encashed on 5th February, 2014. Thus, admittedly, this petitioner-declarant has not deposited 50% of the service tax liability on or before December, 2013, which is a violation of Section 107(3) of the Finance Act, 2013. It is submitted by the counsel for the petitioner that there was no mala fide intention on their part and a liberal interpretation of the VCES, 2013 is to be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ctly. Court can neither replace all these clauses of VCES, 2013 nor further instalments can be given by the court in exercise of powers under Article 226 of the Constitution of the India. The so-called theory argued by the counsel for the petitioner, viz. 'substantial compliance' has no place in a taxing statute, otherwise every declarant or assessee will partly comply with a scheme or provision of the taxing statute and will say that there is substantial compliance, which will lead to nothing but chaos and court cannot be a party to this. (IV) Likewise, 'No prejudice' theory in the payment of taxes cannot be advanced by the erring assessee or erring declarant. There is no question of any prejudice caused to the Union of India and once the clauses of the VCES, 2013 is violated, the declarant is not entitled to get benefit of the said scheme. (V) Counsel for the petitioner has also submitted that never any objection was raised by the respondent while receiving the post-dated cheque. This cheque was given on 31st December, 2013 and the date of the cheque was 31st January, 2014. We are not accepting this argument also mainly for the reason that even if the responden ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
