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TMI Blog2025 (2) TMI 105X X X X Extracts X X X X X X X X Extracts X X X X ..... iled a correct declaration under "Amount in Arrears category" as defined in Section 121(c) of the Sabka Vishwas (Legacy Dispute Resolution) Scheme, 2019 in Chapter V of the Finance Act, 2019 as no appeal was pending on 30.06.2019. Since the declaration in Form SVLDRS-1 dated 31.12.2019 filed by the petitioner under the "litigation category" [i.e., pendency of appeal] was incorrectly filed and should have been filed under "Amount in Arrears Category", the amount that was payable by the petitioner would have higher. Since the petitioner was otherwise entitled to relief under Section 124(1)(ii) of the Sabka Vishwas (Legacy Dispute Resolution) Scheme, 2019 in Chapter V of the Finance Act, 2019, the benefit of the Scheme cannot be denied, provided the petitioner pays the correct amount - the Impugned Communication dated 30.03.2021 cannot be said to be strictly in consonance with Section 129(2)(c) of the Sabka Vishwas (Legacy Dispute Resolution) Scheme, 2019 in Chapter V of the Finance Act, 2019 in revoking the Discharge Certificate in Form SVLDRS-4 dated 07.03.2020. Nevertheless, powers are vested with the Designated Authority under the said Act to correct the mistake in the Discharge ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 9 of 2022, the petitioner, a Director of M/s.Laundry Projects India Private Limited, the Writ Petitioner in W.P.No.27248 of 2021, has challenged the Impugned Recovery Notice dated 23.11.2021 issued by the 1st respondent under Section 87 of the Finance Act, 1994 to the 3rd, 4th and 5th respondents therein. 4. The specific case of the petitioner is that the petitioner in W.P.No.27248 of 2021 had suffered an adverse order in the hands of the 2nd respondent the Commissioner of GST and Central Excise vide Order-in- Original Nos.1 & 2 of 2019 dated 20.02.2019. 5. Aggrieved by the aforesaid Order-in-Original Nos.1 & 2 of 2019 dated 20.02.2019, the petitioner had preferred an appeal before the Customs Excise Service Tax Appellate Tribunal (for short 'Tribunal') on 25.07.2019 which was acknowledged vide Bill No.413862019. The appeal was filed with a delay without payment of any fees for the application filed for condonation of delay. 6. The defect was also pointed out by the Registry of the Tribunal on 17.10.2019 which was however not duly complied by the petitioner. Under these circumstances, the Tribunal after numbering the appeal of the petitioner against the aforesaid Order-i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... appeal was filed on 25.06.2019. It is submitted that the declaration that was filed in Form SVLDRS - 1 on 31.12.2019, even if it was inaccurate would not ipso facto dis-entitle the petitioner in W.P.No.27248 of 2021 to settle the dispute under the provisions of the aforesaid Scheme. 14. The learned counsel for the petitioner further submits that even otherwise even if the petitioner was not entitled to settle the dispute under the litigation category, the petitioner would have been still entitled to settle the dispute under the provisions of the aforesaid Scheme under the Arrears of Tax category and therefore submits that the Order dated 30.03.2021 impugned in W.P.No.27248 of 2021 is unsustainable. It is submitted that at best, the petitioner can be asked to pay 10% of the differential tax which was accepted vide Form SVLDRS - 4 dated 03.07.2020. 15. The learned counsel for the petitioner therefore submits that the powers under Section 129 of the Scheme cannot be pressed against the petitioner on account of failure to make proper declaration as the powers are restricted only to circumstances in case of a declaration under "voluntary disclosure". 16. Specifically, the learned cou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ower exercisable in the like manner and subject to the like consent and conditions, if any, to rescind, revoke, amend or vary the rules, by-laws, notifications or orders." 20.Thus, the powers conferred on the respondent under Section 3 of The Tamil Nadu Preservation of Private Forest Act includes the powers to rescind, revoke or vary the earlier order passed by him, as indicated in Section 15 of The Tamil Nadu General Clauses Act, 1891. In other words, the powers conferred on the respondent under Section 3 of the Tamil Nadu Preservation of Private Forest Act to grant No Objection Certificate to the petitioner to alienate the land belonged to her will certainly empower the respondent to cancel such order for reasons to be recorded by the respondent. Therefore, it is futile on the part of the petitioner to contend that the order passed by the respondent in exercise of power under 3 of The Tamil Nadu Preservation of Private Forest Act is without authority of law and the said contention is liable only to be rejected." 20. He further submits that recovery proceedings against the Director of the Company can be initiated in terms of Section 89 of the Central Goods and Services Tax (CGS ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... expression "amount in arrears" has been defined in Section 121 of the Sabka Vishwas (Legacy Dispute Resolution) Scheme, 2019 in Chapter V of the Finance Act, 2019. The said definition reads as under:- "Section 121. In this Scheme, unless the context otherwise requires,- (a) ..... (b) ..... (c) "amount in arrears" means the amount of duty which is recoverable as arrears of duty under the indirect tax enactment, on account of i. no appeal having been filed by the declarant against an order or an order in appeal before expiry of the period of time for filing appeal; or ii. an order in appeal relating to the declarant attaining finality; or iii. the declarant having filed a return under the indirect tax enactment on or before the 30th day of June, 2019, wherein he has admitted a tax liability but not paid it." 28. For the sake of clarity, the respective sub-clauses in Section 124(1) of the Sabka Vishwas (Legacy Dispute Resolution) Scheme, 2019 in Chapter V of the Finance Act, 2019 are reproduced below:- Section 124(1):- Subject to the conditions specified in sub-section (2), the relief to a declarant under this Scheme shall be calculated as follows:- (a)Where the tax d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f issue of the Discharge Certificate in Form SVLDRS-4 where any material particular furnished in the declaration is subsequently found to be false in case of "voluntary disclosure". 33. Further, under Section 125 (f) of the Sabka Vishwas (Legacy Dispute Resolution) Scheme, 2019 in Chapter V of the Finance Act, 2019, no declaration can be filed under "voluntary disclosure", under the following two circumstances, namely:- i. after being subjected to any enquiry or investigation or audit; or ii. having filed a return under the indirect tax enactment, where in he has indicated an amount of duty payable as payable, but has not paid it. 34. If such an application / declaration was filed, no relief was available with respect to tax dues under Section 124(1)(e) of the Sabka Vishwas (Legacy Dispute Resolution) Scheme, 2019 in Chapter V of the Finance Act, 2019. 35. The expression "voluntary disclosure" has also not been defined in the Sabka Vishwas (Legacy Dispute Resolution) Scheme, 2019 in Chapter V of the Finance Act, 2019. However, the fact remains that the petitioner in this case admittedly had not filed the declaration in Form SVLDRS-1 on 31.12.2019 under "voluntary disclosure" ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... relief under Section 124(1)(ii) of the Sabka Vishwas (Legacy Dispute Resolution) Scheme, 2019 in Chapter V of the Finance Act, 2019, the benefit of the Scheme cannot be denied, provided the petitioner pays the correct amount. 42. Therefore, the Impugned Communication dated 30.03.2021 cannot be said to be strictly in consonance with Section 129(2)(c) of the Sabka Vishwas (Legacy Dispute Resolution) Scheme, 2019 in Chapter V of the Finance Act, 2019 in revoking the Discharge Certificate in Form SVLDRS-4 dated 07.03.2020. Nevertheless, powers are vested with the Designated Authority under the said Act to correct the mistake in the Discharge Certificate in Form SVLDRS-4, if the Designated Authority was mislead and an improper declaration is filed by a declarant. If the petitioner wants the benefit of the Scheme, the petitioner should pay the correct amount together with interest. 43. The admitted tax liability of the petitioner was Rs. 2,99,44,722/- under Order-in-Original Nos.1 and 2 of 2019 dated 20.02.2019. The petitioner is therefore entitled only to a relief of 40% on the aforesaid admitted tax liability confirmed against the petitioner vide Order-in-Original Nos. 1& 2 of 2019 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 7 of the Finance Act, 1994 has to be held to be without jurisdiction. 50. It also appears that a sum of Rs. 22,00,000/- has been recovered from the account of the petitioner in W.P.No.4329 of 2022, who is the Director of the said Company on 10.01.2022. This amount can be adjusted against the aforesaid deficit amount of Rs. 29,94,472.20/- [Rs.45,65,834.20/- - Rs. 15,71,362/-] subject to the petitioner in W.P.No.4329 of 2022 consenting to the same. 51. In view of the above discussion, these Writ Petitions are disposed of with the following directions / observations:- i. Since there is no provision to recover the dues of the writ petitioner in W.P.No.27248 of 2021 M/s.Laundry Projects India Private Limited (from the Directors of M/s.Laundry Projects India Private Limited) under the Scheme of the provisions of the Finance Act, 1994, the Communication dated 23.11.2021 impugned in W.P.No.4329 of 2022 shall stands quashed with consequential relief. ii. the writ petitioner in W.P.No 27248 of 2021 M/s.Laundry Projects India Private Limited shall pay the aforesaid deficit amount of Rs. 29,94,472.20/- [Rs.45,65,834.20/- - Rs. 15,71,362/-] within a period of 30 days from 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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