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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 ..... 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 letter. However, the respondent-authority rejected the application of the petitioner for the benefit of the Amnesty Scheme as the petitioner did not deposit the amount as required by the intimation letter. Keeping in view the observation made by this Court in case of SAFAL DEVELOPERS AND ANOTHER VERSUS STATE OF GUJARAT AND ANOTHER [ 2016 (4) TMI 1310 - GUJARAT HIGH COURT] and considering the facts of the present case, we are of the opinion that respondents have committed error while rejecting the applicat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 Tax Act, 2003 [for short VAT Act ]. The petitioner was regularly filing returns and paying tax under the VAT Act. Search proceedings were conducted by the Enforcement Division of the VAT department on 07.02.2017 and the petitioner was made to pay tax with interest without passing any assessment order on the ground of possible disallowance of input tax credit. 5.2 The assessment notices were issued to the petitioner for the Assessment Years 2013-14, 2014-15 and 2015-16. Special Civil Application No. Assessment year Date of assessment order Amount levied for payment of tax and interest and penalty 1705/2023 2014-15 27.01.2020 37,36,749/- 1706/2023 2017-18 27.01.2020 3,65,663/- 1776/2023 2015-16 26.01.2020 15,72,496/- 5.3 In the assessment proceedings, the Assessing Authority confirmed the demand of tax with interest and penalty on the basis of disallowance of input tax credit on the ground of retrospective cancellation ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y 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 filed an application dated 20.10.2022 for restoration of appeals before the Tribunal and also addressed a letter to the Jurisdictional Officer requesting for copy of the order disposing of the application under the Amnesty Scheme. The petitioner was provided with the impugned letter dated 11.03.2022 rejecting the application filed under the Amnesty Scheme on the ground that the petitioner did not make full payment against the outstanding amount intimated before the Tribunal during hearing of the restoration application. The Tribunal however, refused to restore Second Appeal of the petitioner and rejected the restoration application vide order dated 12.12.2022. 5.10 Being aggrieved, the petitioner has filed these petitions challenging letter of rejection dated 11.03.2022 before this Court. 6. Learned advocate Mr. Uchit Sheth for the petitioner submitted that the petitioner has already deposited the tax and interest prior to passing of the ass ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion 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. 6.8 In support of his submissions, learned advocate Mr. Sheth referred and relied upon the following decisions: Sunflowers Developers vs. State of Gujarat reported in 2019 SCC Online Guj 6611; Safal Developers v/s. State of Gujarat in Special Civil Application No. 1338 of 2016 decided on 22/27.04.2016; Sky Industries Ltd vs. State of Gujarat in Special Civil Application No. 246 of 2023 decided on 07.06.2023; Varmora Granito Pvt. Ltd vs. State of Gujarat in Special Civil Application No. 4650 of 2023 decided on 06.07.2023. 7. On the other hand, learned AGP Mr. Raj Tanna submitted that the petitioner is not entitled to the benefit of Amnesty Scheme without depositing the amount as stated in the intimation letter. 7.1 It was submitted that as per Clause No. 45 of the Amnesty Scheme, where the assessment order pertains to the interest or penalty or both, a total of 20% of the demand value is required to be paid to avail the benefit of the Amnesty Scheme. I ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 dated 06.12.2019 for remitting the pending dues. As per the Clause 4.1 of the Scheme, the vendor would be able to claim the remission of interest and penalty upon payment of tax amount. Clause 4.2 deals with enforcement cases where turnover .is increased. Clause 4.3 pertains to enforcement cases other than prescribed in Clause 4.2 for such cases where penalty is imposed under section 34 (7) by the VAT Act wherein and in such cases, benefit of Clause 4.1 shall be extended. Clause 4.4. of the Amnesty Scheme deals with voluntary disclosure whereas, Clause 4.5 prescribes for eventualities where assessment order pertains to the interest or penalty or both wherein total of 20% of outstanding demand shall stand payable in order to avail the benefit of Amnesty Scheme. 9. Clause 5 of the Amnesty Scheme pertains to cases where appeal under Central Sales Tax is pending or for such eventualities prescribed in Clause 5.2 whereas Clause 6 provides for cases where the department has preferred ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt-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 letter. However, the respondent-authority rejected the application of the petitioner for the benefit of the Amnesty Scheme as the petitioner did not deposit the amount as required by the intimation letter. 14. Approach of the respondent-authority is therefore contrary to the Amnesty Scheme which is considered by this Court in various decisions as under: In case of Sunflowers Developers (supra) this Court has held as under: 20 In this backdrop, it may be germane to refer to the object behind the above referred amnesty scheme. The preamble of the Amnesty Scheme provides that the Goods and Services Act has been brought into force in the State with effect from 1.7.2017. Prior to the coming into force of this enactment, there were approximately more than 20,000 cases pending at different levels under the Sales Tax Act, Value Added Tax Act, Central Sales Tax Act, Motor Spirit Taxation Act, Entry Tax Act and Sugar Cane Purchase Tax Act. As a result considerable recoveries of the amounts inv ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... est 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 only provides that the dealer, to be entitled to the benefit of the Scheme, shall have to have paid the taxes thereunder during the operation of the Scheme. The same does not in any manner preclude those dealers who have already paid the tax prior to the coming into force of the Scheme. 11. At this juncture, reference may also be made to paragraphs 10 and 13 of the Scheme, which give a clear indication of the intent of the Government while introducing the Scheme. Paragraph 10 of the Scheme provides that the benefit of the Scheme shall also be available to those cases where appeal proceedings are pending. However, the dealer who takes the benefit shall be required to withdraw the appeal to the extent of the transactions shown in paragraph 1(B) or shall be required to revise the appeal accordingly. Paragraph 13 provides that where in connection with transactions under paragraph 1(B), tax, interest and penalty has already been paid, then the dealer availing of the benefit of the Scheme shall under n ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d 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 petitioner is entitled to the waiver of interest and penalty under the Scheme on having paid the entire amount of tax considering the fact that the petitioner had challenged the assessment order comprising of tax, interest and penalty. The petitioner is therefore entitled to the waiver of the penalty as per the provisions of the Scheme accordingly. As the petitioner is not entitled to the Amnesty Scheme alternative prayer with regard to restoration of the second appeal before the Tribunal would not survive. 16. In view of foregoing reasons, the petitions stand allowed. Impugned Communication dated 11.03.2022 at Annexure-A as well as attachment order passed by the respondent-authorities are hereby quashed and set aside. The respondent No. 3 is hereby directed to grant benefit of Amnesty Scheme to the petitioner. The respondents are further directed to refund amount recovered from the petitioner pursuant to the recovery proceedings with statutory interest within a period of 12 weeks from the date of receipt ..... X X X X Extracts X X X X X X X X Extracts X X X X
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