9911796707
TMI Blog2018 (3) TMI 931X X X X Extracts X X X X X X X X Extracts X X X X ..... The relaxation or concession, which can be granted in terms of the scheme have been outlined in the scheme itself and particularly by sub-section (4) of section 107. It is not the intent that the tax dues for the period 1st October, 2007 and ending on 31st December, 2012 and the liability in that behalf can be discharged in the manner chosen by the assessee or as per his whims and fancies. Equally, the Revenue and its department cannot, by its whims and fancies, allow any defaulter to pay the taxes after the due date is over long time back. The plain duty of the departmental officials is to assess the tax payable and within the period prescribed by the statute. Any such scheme would not enable the authorities to extend the period of compliance stipulated by law and defer the tax liability indefinitely. It is not expected of them to show undue favour dehors the statute. The petitioners have to blame themselves and they cannot take advantage of their own wrong and force the respondents to accept the further sums in full and final settlement contrary to the stipulations and provisions in the scheme. Petition dismissed - decided against petitioner. - Writ Petition No. 593 of 201 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 01470 552500/- 02.01.2015 01500 737854/- 02.01.2015 From the above table it is observed that the last two payments were made post December 2014. In other words, the declarant has not made the mandatory balance payment of ₹ 2751696/- alongwith interest before 31.12.2014 as is required under the Proviso 4 of Section 107 of Finance Act 2013. 3. As per proviso 4 of Section 107 of Finance Act 2013 under Procedure for making declaration and payment of tax dues states that tax dues or part thereof remaining to be paid after the payment made under sub-section (3) shall be paid by the declarant on or before the 30th day of June, 2014: Provided that where the declarant fails to pay said tax dues or part thereof on or before the said date, he shall pay the same on or before the 31st day of December, 2014 along with interest thereon, at such rate as is fixed under section 75 or, as the case may be, section 73B of the Chapter for the period of delay starting from the 1st day of July, 2014, if the declarant fails to pay as required above, he would not be eligibl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ts to consider the petitioners' application under the above scheme. That application was initially rejected on the ground that it was filed belatedly, particularly after initiation of the recovery proceedings. The petitioners represented on 10th September, 2013 by pointing out that they had been throughout seeking benefit of the scheme and had made an application. Therefore, their application cannot be rejected on such ground. After considering the petitioners' reply, the respondents came to the conclusion on 27th December, 2013 that the scheme was applicable and the petitioners could have taken the benefits thereof. The Assistant Commissioner of Service Tax made that order by firstly holding that the provisions of the scheme dated 13th May, 2013 specifies the period for which this application can be made. The cut off date for making that application was 1st March, 2013. The Anti Evasion Team had visited the premises of the petitioner on 14th March, 2013 and sought records. They also recorded statement of the Managing Director. The petitioners filed an application initially on 7th August, 2013 and thereafter revised it on 3rd September, 2013. The Assistant Commissioner came ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... his writ petition was served on the respondents, a reply affidavit has been filed by the second respondent. The above factual statements have not been denied, but what has been emphasised in this affidavit in para 7 reads as under:- 7. I say that, from the above table it was observed that the last two payments were made post December, 2014. In other words, the declarant had not made the mandatory balance payment of ₹ 27,51,696/- along with interest before 31.12.2014 as is required under the Proviso 4 of Section 107 of Finance Act 2013. As per proviso 4 of Section 107 of Finance Act 2013 under procedure for making declaration and payment of tax dues states that tax dues or part thereof remaining to be paid after the payment made under sub-section (3), shall be paid by the declarant on or before the 30th Day of June, 2014: Provided that where the declarant fails to pay said tax dues or part thereof on or before the said date, he shall pay the same on or before the 31st day of December, 2014 along with interest thereon, at such rate as is fixed under section 75 or, as the case may be, section 73B of the Chapter for the period of delay starting from the 1st day of July, 2014 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Nagpur Bench in the case of Vijay Omprakash Bansal vs. Commissioner of Income-Tax (2002) 257 ITR 649 . 14. Mr. Vashi would submit that there are two decisions rendered by the Punjab and Haryana High Court and the High Court of Madras. In each of these decisions, the said High Courts have taken a view that there is power to condone the delay. Once, there is above power even in respect of such voluntary scheme, then, we must not hesitate to allow the petition. 15. On the other hand, Mr. Dwivedi appearing for the respondents would submit that the decisions of this court in the above matter as also that of the other High Courts are inapplicable. In the present case, the scheme itself is clear. The scheme itself provided for relaxation. That relaxation was granted as is evident by sub-section (4) of section 107. By proviso to that sub-section, the outer limit was specified. Once that was specified and that too in a voluntary scheme, then, there is no scope for extending the time. That would be doing violence to the plain language of the scheme and the statute. This court cannot in its discretionary and equitable jurisdiction rewrite the scheme or make any further provisions co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... set out. The designated authority, by an order and for the reasons to be recorded in writing, reject the declaration in the event that is contravening sub-section (2) of section 106. Then comes section 107, which reads as under:- 107. Procedure for making declaration and payment of tax dues. - (1) Subject to the provisions of this Scheme, a person may make a declaration to the designated authority on or before the 31st day of December, 2013 in such form and in such manner as may be prescribed. (2) The designated authority shall acknowledge the declaration in such form and in such manner as may be prescribed. (3) The declarant shall, on or before the 31st day of December, 2013, pay not less than fifty per cent. of the tax dues so declared under sub-section (1) and submit proof of such payment to the designated authority. (4) The tax dues or part thereof remaining to be paid after the payment made under sub-section (3) shall be paid by the declarant on or before the 30th day of June, 2014: Provided that where the declarant fails to pay said tax dues or part thereof on or before the said date, he shall pay the same on or before the 31st day of December, 2 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of on or before the said date, namely, 30 th June, 2014, to pay the same on or before 31st day of December, 2014 along with interest thereon at such rate as is fixed under section 75 or, as the case may be, section 73B of the Chapter for the period of delay starting from the 1st day of July, 2014. Thus, this was a concession or relaxation given, but not without condition. There was a condition, namely, to pay interest and within the outer time limit. 21. Sub-section (5) of section 107 would say that notwithstanding anything contained in sub-section (3) and subsection (4), any service tax which becomes due or payable by the declarant for the month of January, 2013 and subsequent months shall be paid by him in accordance with the provisions of the Chapter and accordingly, interest for delay in payment thereof, shall also be payable under the Chapter. The discharge of the dues is to be obtained in terms of sub-section (7) of section 107 after furnishing of details of full payment of declared tax dues. It is then, by section 108, immunity from penalty, interest and other proceedings is granted. If, therefore, the payment is made in accordance with the scheme, then, the benefits wou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... stipulated by law and defer the tax liability indefinitely. It is not expected of them to show undue favour dehors the statute. We are of the firm opinion that the judgments of this court as also the other High Courts relied upon by Mr. Vashi are distinguishable on facts. 24. In the case before this court in the case of Vijay Omprakash Bansal (supra), the petitioner Vijay Bansal was assessed to income-tax for a number of years and he wanted to avail of the benefit under the Kar Vivad Samadhan Scheme, 1998. Under that scheme, the assessee is required to make payment of the required amount stated to be around 30% of the full assessment within a period of thirty days after the required amount is communicated to the assessee. In the event the amount is so paid, it is accepted as a one time full settlement. The petitioner was communicated that under the said scheme, his liability will be ₹ 2,18,451/-. The intimation was given to him on 10th December, 1998. The last date for making payment was 9 th January, 1999. On 9th January, 1999, the petitioner went to the Income Tax Department to deposit the amount only to learn that the payment is to be made in a Nationalised bank. 9th J ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... The Government of India has itself issued a circular dated September 3, 1998. By this circular it has been, inter alia, provided by the Board that the period for calculating interest will be 90 days from the date of declaration. If the 90th day happens to be a bank holiday, payment on the 91st day being the next working day would be valid. Thus, it is clear that section 67 does not embody a totally inflexible rule. When things are beyond the control of the citizen, certain moving space is normally allowed. This is precisely what the petitioner is wanting in the present case. 8. Taking the totality of circumstances into consideration it appears that the petitioner was unable to make the deposit on account of reasons beyond her control. The Revenue has suffered no loss as the interest for three months, viz., ₹ 33,000, has been deposited by the petitioner. Still further, it is also clear that a declaration under the scheme could be made on or before december 31, 1997. The tax along with interest could have been deposited on or before March 31, 1998. Any deposit before that should not be considered as being beyond the scheme. In any event, the interest having been paid, the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r the STVCE Scheme. They were bound by the stipulations thereof. They knew the liability had to be cleared by 31st December, 2014. They made some payment after availing of the relaxation and by further relaxation, which was available till 31st December, 2014, they definitely could have made the deposit. How there could be a miscommunication is, therefore, not clear at all. The reason now assigned and in the memo of the petition is clearly an afterthought. We are in respectful agreement with the High Court of Jharkhand that when this is the nature of the stipulations in the scheme, any view taken contrary to the same would be rewriting the scheme itself or prescribing conditions which are not specifically imposed. The argument canvassed before the High Court was identical. It was rejected with the following reasoning:- We are not accepting this argument mainly for the following reasons: a) The VCES, 2013 is already a liberal scheme floated for those declarants, who have committed breach of the taxing statute, especially in payment of Service Tax. Thus, the scheme itself is a liberal approach of the Union of India to encourage voluntary declaration. b) Looking to the c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ill 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. (VI) These aspects of the matter have been properly appreciated by the Assistant Commissioner Central Excise and Service Tax, Division-IV, Jamshedpur while passing the order dated 7th April, 2014. It ought to be kept in mind that whenever such voluntary discloser Scheme is floated, further lenience should not be given by the court to the declarant apart from what has been provided under the scheme, otherwise, there will be no end of liberal approach. Moreover, payment of tax has a direct nexus with the budget of the country. There are fixed dates for paymen ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
