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TMI Blog2024 (7) TMI 464X X X X Extracts X X X X X X X X Extracts X X X X ..... ed 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 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. The 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 petitioner is entitled to the waiver of interest and penalty under the Scheme on having paid the entire amount of tax consid ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dtd. 10/11/2017 (Annexure C hereinabove) being issued by Respondent No. 03; F. Your Lordships may be pleased to grant such other and further relief that may be deemed fit and proper in the interest of justice in favour of the petitioner. 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. For sake of convenience, Special Civil Application No. 26064 of 2022 is treated as the lead matter. 6. Brief facts of the case are as under: 6.1 The petitioner is a proprietorship firm. Notice dtd. 03/07/2017 for issue based assessment u/s. 34 (8A) of the Gujarat Value Added Tax Act, 2003, was issued to the petitioner in regard to the period from 01/04/2013 to 31/03/2014 by the Respondent No. 03. 6.2 Assessment Order dtd. 09/11/2017 in Form 304 was issued by Respondent No. 03. A demand of tax Rs. 5,77,331/+ Interest Rs. 3,37,738/+Penalty Rs.8,65,996/= Total Rs. 17,81,065/was assessed. It is also mentioned in the said order that the petitioner had paid a total ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ired that the pending appeals may be withdrawn, in accordance with the Yojana, an application praying for withdrawal of pending appeal was filed on 04/02/2020 before Respondent No. 02. 6.9 In response to the application of the petitioner, Respondent No. 01 had issued intimation letter under Vera Samadhan Yojana - 2019 which provides details of assessment year, tax as per application, interest as per application, penalty as per application, total amount as per application, demand as per original order (assessment order). In addition to these details the said letter also provides details of first instalment payable under the Vera Samadhan Yojana, 2019, remaining eleven instalment payable under the said Yojana total amount payable under the said Yojana. It is important to note that according to the said intimation letter itself absolutely no amount was payable under the Yojana having regard to the fact that entire tax (along with interest) was already paid and as per the said Yojana, interest penalty were required to be waived. 6.10 The petitioner received phone call from Respondent No. 01 demanding payment of unpaid penalty amount. Although petitioner had already deposited the tax al ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ts cannot help the petitioner. 6.14 Having left with no other choice, the petitioner herein had submitted application before the Respondent No. 02 for restoring their appeal which was withdrawn in order to take benefit under the Yojana. Said application was submitted on 18/07/2022 before the Respondent No. 02. Respondent No. 02 was pleased to grant stay against recovery of the penalty amount vide his order dtd. 18/07/2022. The stay is granted uptill 31/12/2022 only. 6.15 Therefore immediately on 19/07/2022, the petitioner submitted letter before Respondent No. 01 requesting him to release the attachment of bank account in light of the aforesaid stay order passed by the Respondent No. 02. 6.16 In response to the aforesaid, the Respondent No. 02 had passed two separate orders both dtd. 20/07/2022 releasing bank attachment in regard to Bank of Baroda and Axis Bank Ltd. Respectively. 6.17 The petitioner had filed application for review of decision / letter / order dtd. 11/03/2022 whereby the application under Vera Samadhan Yojana, 2019 was disposed of under the pretext that the petitioner herein has not made full payment against amount intimated within time limit prescribed under Vera ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Amnesty Scheme. 7.6 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. 7.7 It was also submitted by learned advocate Mr. Trivedi 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. 7.8 In support of his submissions, learned advocate Mr. Trivedi 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oner is not entitled to the benefit of the Amnesty Scheme. 8.5 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. 9. 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 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. Cla ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ited 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 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. 15. Approach of the respondent-authority is therefore con ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. 16. 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 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 waive ..... X X X X Extracts X X X X X X X X Extracts X X X X
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