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TMI Blog2021 (3) TMI 171X X X X Extracts X X X X X X X X Extracts X X X X ..... through instant petitions are seeking quashing of orders whereby their different declarations filed under Sabka Vishwas (Legacy Dispute Resolution) Scheme, 2019 (for short 'Amnesty Scheme') have been rejected on the sole ground that department has already initiated enquiry prior to the date of filing declaration. The Amnesty Scheme was introduced by Finance Act, 2019 (for short 'FA, 2019'). [2] For the sake of convenience, facts are borrowed from CWP No. 8341 of 2020. The petitioner during 2016-17 neither filed service tax returns nor paid service tax as required under Finance Act, 1994. The petitioner on the introduction of aforesaid Amnesty Scheme filed declaration dated 31.12.2019 under 'voluntary disclosure' category. The respondent vide order dated 22.02.2020 (Annexure P-8) rejected declaration holding that petitioner has already been subjected to an enquiry, thus declaration under category of 'voluntary disclosure' is not maintainable. [3] Counsel for the petitioner contended that declaration was filed on 31.12.2019 and letter dated 14.10.2019 which is basis of alleged enquiry was never served upon the petitioner and further any enquiry initiated after 1.9.2019 i.e. date of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rovided that nothing contained in the above clauses shall be applicable where such an appeal has been heard finally on or before the 30th day of June, 2019. Illustration 1: The show cause notice to a declarant was for an amount of duty of Rs. 1000 and an amount of penalty of Rs. 100. The order was for an amount of duty of Rs. 1000 and amount of penalty of Rs. 100. The declarant files an appeal against this order. The amount of duty which is being disputed is Rs. 1000 and hence the tax dues are Rs. 1000. Illustration 2: The show cause notice to a declarant was for an amount of duty of Rs. 1000 and an amount of penalty of Rs. 100. The order was for an amount of duty of Rs. 900 and penalty of Rs. 90. The declarant files an appeal against this order. The amount of duty which is being disputed is Rs. 900 and hence tax dues are Rs. 900. Illustration 3: The show cause notice to a declarant was for an amount of duty of Rs. 1000 and an amount of penalty of Rs. 100. The order was for an amount of duty of Rs. 900 and penalty of Rs. 90. The declarant files an appeal against this order of determination. The departmental appeal is for an amount of duty of Rs. 100 and penalty of Rs. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... amount of duty is more than rupees fifty lakhs, then, forty per cent. of the tax dues; (iii) in a return under the indirect tax enactment, wherein the declarant has indicated an amount of duty as payable but not paid it and the duty amount indicated is,- (A) rupees fifty lakhs or less, then, sixty per cent. of the tax dues; (B) amount indicated is more than rupees fifty lakhs, then, forty per cent. of the tax dues; (d) where the tax dues are linked to an enquiry, investigation or audit against the declarant and the amount quantified on or before the 30th day of June, 2019 is - (i) rupees fifty lakhs or less, then, seventy per cent. of the tax dues; (ii) more than rupees fifty lakhs, then, fifty per cent. of the tax dues; (e) where the tax dues are payable on account of a voluntary disclosure by the declarant, then, no relief shall be available with respect to tax dues. (2) The relief calculated under sub-section (1) shall be subject to the condition that any amount paid as pre-deposit at any stage of appellate proceedings under the indirect tax enactment or as deposit during enquiry, investigation or audit, shall be deducted when issuing the statement indicating th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of clause (f) of Section 125(1) inhibits a person from filing declaration under voluntary disclosure who has already filed returns disclosing liability whereas definition of 'arrears' includes such persons and section 124(1)(c)(iii) is extending immunity, thus there is stark contradiction between aforesaid clauses of Section 124 and 125 of FA, 2019. (iii) Scheme came into force w.e.f. 1.9.2019 and any persons could file declaration on or before 31.12.2019. (iv) Section 125 does not prescribe any date with respect to eligibility of any person, however 30th June' 2019 has been specifically notified for different categories of declarations. [7] Expression enquiry/investigation as well audit has been defined under Section 121(g) and (m) of FA, 2019. Section 121(g) and (m) read: Section 121(g) "audit" means any scrutiny, verification and checks carried out under the indirect tax enactment, other than an enquiry or investigation, and will commence when a written intimation from the central excise officer regarding conducting of audit is received; (m) "enquiry or investigation", under any of the indirect tax enactment, shall include the following actions, namely:- (i) sea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ny such provision, it would be contrary to the scheme and intent of legislature to hold that status of a person as on date of filing declaration is relevant. The scheme came into force w.e.f. 1.9.2019, thus on the said date right/liabilities, eligibility and non-eligibility stood freezed. If as contended by respondent is upheld, there would be different dates of eligibility for every person who files declaration under the category of 'voluntary disclosure'. Thus, contention of respondent being untenable does not appeal to us. [9] Amnesty Scheme is a piece of beneficial legislation and liberal interpretation which makes the scheme successful should be advanced. Strict interpretation which frustrates intent and purport of beneficial legislation deserves to be avoided. Our opinion is fortified by recent judgment of Hon'ble Supreme Court in Brahampal @ Sammay and another Vs. National Insurance Company, Civil Appeal No. 2926 of 2020 decided on 07.08.2020. Section 125(1)(f) debars a person from making voluntary disclosure after being subjected to any enquiry or investigation or audit. As per respondent, the date of initiation of enquiry is irrelevant as aforesaid clause debars a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ases so that the designated committees are able to determine the tax dues within the time stipulated under the Scheme. The above quoted circulars make intention of the Government clear and lucid. Board has permitted those persons to file declaration who are excluded by Section 125 of the FA, 2019 like hearing of show cause notice or appeal has concluded on or before 30.6.2019 or show cause notice is issued after 30.6.2019 though duty was not quantified on or before 30.6.2019. There is no circular on record which clarifies that no enquiry should be pending on the date of filing declaration though as per our opinion it would have been contrary to the scheme. [10] Our courts are flooded with avoidable litigation and government by way present scheme has initiated step to minimise litigation and generate revenue, thus keeping in mind intent and purport of the scheme as well Board Circulars, it would be appropriate to liberally interpret Section 125 of FA, 2019. It is apt to notice that in case of voluntary disclosure, as per section 124(1)(e) of the FA, 2019 no immunity from tax liability is available though immunity from 40% of tax liability is available in other categories i ..... X X X X Extracts X X X X X X X X Extracts X X X X
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