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TMI Blog2024 (6) TMI 1169X X X X Extracts X X X X X X X X Extracts X X X X ..... oner has further prayed for refund of the amount paid by the petitioner towards penalty pursuant to the directions by the respondents along with statutory interest on such refund. The petitioner has also prayed for quashing and setting aside the attachment order on the bank accounts of the petitioner. The petitioner, in the alternative, has prayed for restoration of the second appeal filed by the petitioner on merits if it is held that the petitioner is not entitled to the benefit of the Amnesty Scheme as the petitioner has challenged the order of penalty in the second appeal before the Gujarat Value Added Tax Tribunal (Tribunal)which was withdrawn to avail the benefit of the Amnesty Scheme. 3. Rule returnable forthwith. Learned Assistant Government Pleader Mr. Raj Tanna waives service of notice of rule for the respondents. 4. Having regard to the controversy in the narrow compass, with the consent of the learned advocates for the parties, the matters were taken up for hearing. 5. The brief facts are as under: 5.1 The petitioner, a proprietorship concern, is engaged in the business of resale of waste paper and was duly registered under the provisions of the Gujarat Value Added ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er also intimated about filing of the application under the Amnesty Scheme to the Jurisdictional Assessing Officer. The VAT Department issued the intimation regarding amount payable under the Amnesty Scheme. Since the petitioner believed that the amount of tax with interest had already been paid prior to passing of assessment order, no further payment was made which was also orally conveyed to the Jurisdictional Assessing Officer. However, the petitioner was orally intimated by the Jurisdictional Officer that petitioner will have to pay amount as mentioned in the intimation letter even though the petitioner had already paid tax with interest. 5.7 The petitioner thereafter deposited amount as mentioned in the intimation letter based upon the oral discussion with the Jurisdictional Officer on 03.03.2022. 5.8 It is the case of the petitioner that the petitioner was intimated by letter dated 21.06.2022 that its bank account had been detached by the VAT Department for outstanding dues of the Years 2013-14 to 2015-16. The petitioner however could not find any order disposing of the application filed under the Amnesty Scheme. 5.9 Since the petitioner was facing recovery, the petitioner ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of Amnesty Scheme, then the petitioner is required to be permitted to pursue the remedy available under the provisions of the VAT Act by restoration of the second appeal which was withdrawn by the petitioner to avail the benefit of the Amnesty Scheme. 6.6 It was further submitted that the amount the petitioner was made to deposit pursuant to the intimation letter issued under the Amnesty Scheme is also contrary to the Scheme as the petitioner was eligible to the benefit of the Amnesty Scheme without any further requirement of deposit of any amount as what was challenged in appeal was not mere penalty order which would require pre-deposit of penalty. The petitioner is therefore, entitled to the refund of the amount wrongly recovered pursuant to the intimation letter. 6.7 It was also submitted by learned advocate Mr. Sheth that attachment of the bank account of the petitioner is also liable to be quashed as the petitioner has already filed an application for Amnesty Scheme and without any intimation of disposal of such application, the respondent-authorities could not have made coercive recovery against the petitioner during pendency of the issue with regard to waiver of penalty. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ner was denied the benefit of the Amnesty Scheme. 7.4 It was submitted that the time limit as prescribed under Clause 8 of the Amnesty Scheme was extended upto 31.08.2021. However, the petitioner failed to make payment in time and therefore, the petitioner is not entitled to the benefit of the Amnesty Scheme. 7.5 It was submitted that as per the assessment order, a demand was raised qua penalty only and therefore, the petitioner was supposed to pay the amount as stated in the intimation letter as per Clause 4.5 of the Amnesty Scheme. Learned AGP Mr. Tanna therefore submitted that the petitioner having failed to comply with the requisite condition to avail the benefit of the Amnesty Scheme by not depositing 20% of the penalty amount as per the assessment order, the petitioner was rightly denied the benefit of the Amnesty Scheme. 8. Having heard learned advocates for the respective parties and having considered the facts of the case as well as the provisions of the Amnesty Scheme, it is not in dispute that the petitioner is entitled to the benefit of the Amnesty Scheme which was launched vide Resolution dated 11.09.2019 by the Government and subsequently revised by Resolution date ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... est but so far as the penalty is concerned, the petitioner was entitled for the waiver thereof. The respondent authorities however invoking the Clause 4.5 by misinterpreting the object of the Scheme to give waiver of interest and if the amount of tax is deposited by the assessee. According to the respondent-authority, only the outstanding amount is to be seen which pertains to the penalty and therefore as per Clause 4.5 of the Amnesty Scheme, the petitioner was directed to deposit 20% of the penalty. The petitioner under the bona fide belief that the petitioner already deposited the entire tax and interest and the order under challenge before the appellate authority was the assessment order comprising of tax interest and penalty and therefore as per Clause 4.5 of the Amnesty Scheme, the petitioner is not liable to deposit any penalty. The petitioner therefore did not deposit amount of penalty as intimated by the respondent-authority. The petitioner however, intimated the respondent-authority that as the petitioner has already paid tax and interest before assessment order was passed, the petitioner is not liable to deposit any amount of the penalty as required by the intimation lett ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as they wanted to avail the benefit of the amnesty scheme, the respondent ought to have respected such request and afforded the petitioners sufficient time to avail the benefit of the amnesty scheme, however, on the contrary, the second respondent, in undue haste, has proceeded to pass an ex-parte high pitched best judgment assessment order under section 34 (8) of the GVAT Act." * In case of Safal Developers (supra) this Court has held as under: "10. On behalf of the respondents, it has been contended that in view of paragraph 7 of the Scheme, the petitioners are not entitled to the benefit of the Scheme as the amount of tax and interest has been paid prior to the Scheme having been brought into effect. As noticed earlier, paragraph 7 of the Scheme provides that the dealers shall be entitled to the benefit of the Scheme only after the payment of the taxes payable under the Scheme during the period of the Scheme. In the opinion of this court, the contention that in cases where the tax and interest have been paid prior to the coming into force of the Scheme, the Scheme would not be applicable, does not appear to be a true construction of the provisions of paragraph 7. Paragraph 7 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Scheme, would be denied the benefit thereof, whereas those dealers who have not paid the taxes would be granted the benefit of the Scheme, which would be clearly violative of the constitutional provisions as envisaged under Article 14 of the Constitution of India and would amount to putting a premium on non-payment of taxes whereby dealers who have not paid taxes steal a march over those dealers who have paid their taxes in time." 15. It is also pertinent to note that against the order passed by this Court in case of Safal Developers (supra), the State preferred Special Leave Petition No. 19629 before Hon'ble Supreme Court by the State was also dismissed. Keeping in view the observation made by this Court in case of Safal Developers (supra) and considering the facts of the present case, we are of the opinion that respondents have committed error while rejecting the application under Amnesty Scheme as the petitioner has already paid amount of tax and interest prior to passing of the order of assessment and prior to the announcement of the Scheme. Therefore, reliance placed by the respondent authority on Clause 4.5 of read with Clause 8 of the Scheme would not be applicable as the p ..... X X X X Extracts X X X X X X X X Extracts X X X X
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