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TMI Blog2019 (4) TMI 1353X X X X Extracts X X X X X X X X Extracts X X X X ..... Finance Act, 1994 to recover a sum of ₹ 34,32,226/- from the petitioner, inter alia, on grounds that the petitioner had failed to pay taxes in conformity of the declaration. We would find it difficult to trace a single instance of an abuse of statutory power which is present in the present case because in our opinion even if under the misplaced understanding of the Assistant Commissioner, two deposits made by the petitioner did not qualify under the Scheme, it was nevertheless a tax deposit and to that extent the petitioner could not be held a defaulter for being proceeded under the provisions of Section 87 of the Finance Act, 1994. Petition allowed. - Civil Writ Jurisdiction Case No.24767 of 2018 - - - Dated:- 27-3-2019 - Mr. Justice Jyoti Saran And Mr. Justice Arvind Srivastava For the Petitioner/s : Mr. Rajiv Kumar Singh, Adv. For the Respondent/s : Mr. Anjani Kumar Sharan, Asstt. S.G. ORAL JUDGMENT MR. JUSTICE JYOTI SARAN Heard Mr. Rajiv Kumar Singh, learned counsel appearing for the petitioners and Mr. Anjani Kumar Sharan, Assistant Solicitor General for the Union of Ind ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by 30th June, 2014 of the year following. Two provisions which would be relevant for consideration of the issue raised and contested by the parties are Clause 105(1)(e) which defines tax dues and Clause 107, which reads under: 105(1)(e) tax dues means the service tax due or payable under the Chapter or any other amount due or payable under section 73A thereof, for the period beginning from the 1st day of October, 2007 and ending on the 31st day of December, 2012 including a cess leviable thereon under any other Act for the time being in force, but not paid as on the 1st day of March, 2013. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in the act on 10.05.2013. We completely fail to appreciate as to how when the Scheme itself conceives of the tax dues standing as on 01.03.2013 and is retroactive in operation to account for the arrears dues for the period 01.10.2007 until 31.12.2012 for being treated as tax arrears as on 01.03.2013, a deposit made on 07.03.2013 and 12.03.2013, can be ignored, simply because the Scheme got incorporated on 10.05.2013. A plain reading of the Scheme would confirm that there is no such exclusionary clause present which ignores a deposit made by a tax payer in between the period 01.03.2013 and 10.05.2013 i.e. the date on which Scheme got incorporated, rather if the Scheme takes into its fold the tax dues as existing on 01.03.2013, then in our opinion every deposit made by a tax payer since after 01.03.2013 would constitute a deposit towards tax arrears so declared. The order of the Assistant Commissioner, Central Excise and Service Tax Division dated 17.11.2014 completely fails on reasons as well as on the interpretation of the Scheme rather reflects a complete misappreciation of the stipulations present thereunder. Our attention has been in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s were deposited by the petitioners with the department after 1-3-2013. However, the same having been deposited before 10-5-2013 that is the date on which the scheme was framed, the department contends that such amount cannot form part of the declaration under the Scheme. In our opinion, the contention ignores the statutory provisions contained in the Scheme of 2013. As we have noticed, the declaration can be made in terms of Section 106 of tax dues. The term tax dues is defined in Section 105(1)(e). If we accept the stand of the department that any tax which is deposited before 10-5-2013 cannot form part of a declaration, the same would substantially mutilate the definition of term tax dues contained in Section 105(1)(e). If the intention of the Legislature was to exclude any tax deposited before the framing of the scheme, the same could have been provided in plain language. On the contrary, the Legislature excluded from the purview of declaration only those taxes which were already paid by 1-3-2013. The period between 1-3- 2013 and 10-5-2013 would, by necessary application of the provision of the scheme, be covered for declaration under the Scheme itself. In our understanding ..... X X X X Extracts X X X X X X X X Extracts X X X X
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