Chartered Accountant
Bookmark and Share
click here to subscribe our newsletter
 
 
Corporate News *  GST registration cancellation without reasons amounts to ‘Economic Death’ of business: Supreme Court. *  No GST refund if appeal before GSTAT is filed late: Gujarat High Court. *  Mere upload of GST notice on portal not valid service, appeal limitation won’t start: Punjab & Haryana High Court. *  Taxpayer can’t be penalised for missing notices hidden under ‘Additional Notices/Orders’: Calcutta High Court allows fresh adjudication. *  State tax officer can’t issue GST SCN beyond CBIC-assigned jurisdiction: Bombay High Court stays recovery proceedings. *  Earlier 7.5% Pre-Deposit must count towards mandatory 10% for Appeal: Uttarakhand high court quashes CESTAT Order. *  Third Parties can’t challenge GST Advance Rulings merely due to financial impact: Karnataka HC *  GST SCN generated using AI tool quashed: Punjab & Haryana High Court *  Bank Attachment Quashed as Madras HC Quashes GST Order Issued Against Deceased Person *  ITC Blocking Order for Failure to Record ‘Reason to Believe’ U/R 86A Quashed: Allahabad High Court *  Govt Extends GSTAT Appeal Filing Deadline From 30 June to July 31, 2026 *  GST Demand on RWA Stayed: Allahabad High Court Questions Taxability of Electricity Distribution to Flat Owners *  CBIC Clarifies Jurisdiction After GST Registration Transfer: Earlier Proceedings Remain Valid, New Officer to Continue Action *  GST authorities’ certification not mandatory for reimbursement, but tax payment must be proven: Karnataka HC *  Contractor can’t seek gst reimbursement through writ when contract has arbitration clause: Karnataka HC *  Unsigned Order Is No Order in Law: AP HC Quashes GST Assessment Order for Want of Officer’s Signature *  Customs Can’t Levy Rs. 1.36 Crore Cost Recovery Charges Without Proof of Full-Day Officer Deployment: CESTAT  *  12% IGST Payable On Imported Dialysis Machine Parts: CESTAT *  Bombay High Court Admits Challenge to GST Limitation Extension Notifications; Grants Protection Against Coercive Recovery *  Criminal Case Can’t Run Parallel to GST Proceedings on Same Facts: Allahabad High Court *  Allahabad High Court Stays GST Detention Order; Directs Release of Vehicle and Goods on Deposit of Rs. 1.44 Lakh *  Service Tax Can’t Be Levied on Loss-Making Contracts: Gujarat High Court *  GSTN Mandates Ship-to GSTIN in e-Invoice and e-Way Bill APIs; Introduces Voluntary e-Way Bill Closure Facility from August 1, 2026 *  GST Appeal Can’t Be Rejected as Time-Barred When Taxpayer Was Pursuing Rectification Remedy: Telangana High Court *  Absence of E-Way Bill and Transport Documents Justifies Customs Seizure U/s 110: Gauhati HC *  Madras High Court Upholds GST Late Fee and Penalty for Non-Filing of Annual Return, Dismisses Challenge  *  GST Records, Purchase Documents Sufficient to Discharge Burden Under Customs Act: CESTAT Orders Release of 3.65 Kg Gold  *  No Sugar Cess Payable on Sugar Exported Out of India: CESTAT *  Road Construction Services Exempt and SCN Time-Barred: CESTAT Quashes Service Tax Demand Based Solely on Form 26AS  *  ITC Freeze Upheld After GST Dept Find Suppliers Were Allegedly Fake Bill-Trading Entities: Madras HC 
Subject News *  Input service benefits can’t be denied: CESTAT allows export refund despite MMTC acting as Canalising agency. *  No service tax demand without proof of service of SCN: CESTAT. *  Service tax demand quashed as dept. fails to prove service of SCN: CESTAT *  GST : Mere allegation of inadequate consideration of reply not enough to invoke writ jurisdiction: Delhi High Court *  Onerous conditions imposed for provisional release of seized imported goods shouldn’t amount to virtual denial of relief: CESTAT. *  GST SCN without alleging fraud cannot invoke sec. 74: Karnataka High Court quashes adjudication order. *  Extended Limitation Can’t Be Invoked Merely on Form 26AS Data: CESTAT *  Revenue-Sharing with Restaurants Not Taxable as Business Support Service: CESTAT *  R. 6(3) Option Can’t Be Forced on Taxpayer; CESTAT Quashes Rs. 12.36 Crore CENVAT Credit Demand *  Excise Duty | Power Consumption Alone Can’t Prove Clandestine Manufacture: Karnataka High Court *  Madras High Court Examines DGGI’s Authority to Issue GST Penalty Orders Under Section 122, Adds DGGI as Party *  Proceedings under omitted r. 96(10) can’t survive without saving clause: andhra pradesh high court quashes gst refund recovery *  Excise duty power consumption alone can’t prove clandestine manufacture: karnataka high court *  Madras high court rules GST show cause notices must disclose grounds for invoking extended limitation *  Court Can’t Direct Extension GST Return Deadlines or Waive Interest and Penalties: Karnataka High Court *  GST Notifications Can’t Go Beyond GST Council Recommendations: Madras High Court Quashes SCN on Branded Pulses *  Appeal Can’t Be Dismissed for Delay When Dept’s Own Order Mis-states Limitation Period: CESTAT *  No Evidence of KYC or Due Diligence Breach By Customs Broker: CESTAT Quashes Licence Revocation in Export Overvaluation Case *  Glucometers Are Chemical Analysis Instruments Classifiable Under Tariff Heading 9027: CESTAT *  Validity of Post-GST Service Tax Proceedings Upheld: Gujarat High Court Dismisses Challenge to S. 73 SCN *  Rectified GST Refund Applications Can’t Be Rejected as Time-Barred If Original Refund Claim Was Filed Within Limitation: Gujarat HC *  Service Tax Refund Can’t Be Denied as Time-Barred When Levy Itself Is Unconstitutional: Gujarat High Court *  Same Officer Can’t Act As Auditor & Adjudicator: Karnataka High Court *  Karnataka High Court Condones 324-Day Delay, Revives Customs Appeal in Jewellery Pilferage Case  *  Madras High Court Quashes GST Assessment Order Passed Ex Parte Despite Prior ITC Reversal; Lifts Bank Attachment *  Tobacco Process Doesn’t Amount to Manufacturing: Madras High Court Quashes Rs. 1.32 Crore Compensation Cess Demand  *  Recovery Notice Unsustainable After Voluntary Reversal of Unutilised Credit: CESTAT  *  GST | ‘System Generated’ SCN Without Officer Details Invalid: Allahabad HC  *  Electronic Records Without Statutory Certification Requirements Can’t Justify Undervaluation Allegations: CESTAT *  Madras High Court Stays GST Order, Finds Prima Facie Merit in Plea Against S. 74 Proceedings Based on S. 73 Intimation  

Comments

Print   |    |  Comment

PJ/CASE LAW/2015-16/2993

Whether declaration of VCES can be filed before issuance of order or not?

Case:-ALP CONSULTING LTD. Versus ASSITT. COMMR. OF SERVICE TAX, BANGALORE
 
Citation:- 2015 (37) S.T.R. 693 (Kar.)
 
Brief facts:- The petitioner has assailed order dated 31-12-2013, passed by the first respondent - Assistant Commissioner of Service Tax, Bangalore (Annexure “A”). Several other prayers are also sought by the petitioner. At the outset, petitioner’s Counsel submitted that the writ petition is restricted to challenge made to order at Annexure “A” and that liberty may be reserved to the petitioner to seek other prayers in an appropriate proceeding. Learned Counsel for the respondents have no objections to the submission made on behalf of the petitioner. In the circumstances, the legality and correctness of the impugned order dated 31-12-2013, is considered in these writ petitions.
The facts germane to the disposal of these writ petitions are that the respondents have initiated Service Tax Voluntary Compliance Encouragement Scheme - 2013, under the provisions of the Finance Act, 2013 ([hereinafter, referred to as the “Scheme”). A copy of the Scheme is annexed at Annexure “B” to the writ petition. The petitioner filed its application under Section 106 of the said Scheme. The first respondent on considering the said application and after hearing the petitioner’s Counsel has passed the impugned order stating that the application is not being considered having regard to second proviso to Section 106(1) of Chapter VI of the Finance Act, 2013. That order is assailed in this writ petition.
Theyhave heard the learned Counsel for the petitioner and the learned Counsel for the respondents and perused the material on record.
 
Appellant’s contention:- During the course of arguments, learned Counsel for the petitioner contended that the petitioner is eligible to be considered under the Scheme having regard to sub-section (1) of Section 106 of Chapter VI of the Finance Act, 2013 in view of the fact that no notice or any order of determination under Section 72 or Section 73 or under Section 73A had been issued or made prior to 1-3-2013. That the proviso did not apply to the case of the petitioner and that under the main provision, sub-section (1) of Section 106, the case of the petitioner had to be considered.
 
Respondent’s contention:- Per contra, learned Counsel for the respondents while supporting the impugned order, stated that the second proviso has been rightly invoked by the first respondent and that the impugned order would not call for any interference.
 
Reasoning of judgment:- Theyhave perused the impugned order, which is at Annexure “A”. It is noted from the said order that a discussion has been made as to whether there was any show cause notice or determination that was issued or made under Section 73 or under Section 73A of the Act. It is the contention of the petitioner that the earlier proceedings was one under Section 73 of the Act and that Section 73A of the Act was not at all invoked and that for the subsequent period, no notice was issued by the Department and hence, under the main provision of sub-section (1) of Section 106 of the Act, the application of the petitioner had to be considered.
Per contra, learned Counsel for the respondents while drawing their attention to the second proviso have contended that the earlier order of determination pursuant to show cause notice dated 19-3-2010 is a bar for consideration of the case of the petitioner under the Scheme. Much stress has been laid on the second proviso to sub-section (1) of Section 106 in that regard. In order to consider these rival contentions, it would be useful at this stage, to extract the relevant provision :-
“Person who may make declaration of tax dues. -
106.(1) Any person may declare his tax dues in respect of which no notice or an order of determination under Section 72 or Section 73 or Section 73A of the Chapter has been issued or made before the 1st day of March, 2013 :
Provided that any person who has furnished return under Section 70 of the Chapter and disclosed his true liability, but has not paid the disclosed amount of Service Tax or any part thereof, shall not be eligible to make declaration for the period covered by the said return :
Provided further that where a notice or an order of determination has been issued to a person in respect of any period on any issue, no declaration shall be made of his tax dues on the same issue for any subsequent period.
(2) Where a declaration has been made by a person against whom, -
(a)       an inquiry or investigation in respect of a Service Tax not levied or not paid or short-levied or short-paid has been initiated by way of -
(i)        search of premises under Section 82 of the Chapter; or
(ii)        issuance of summons under Section 14 of the Central Excise Act, 1944, as made applicable to the Chapter under Section 83 thereof; or
(iii)       requiring production of accounts, documents or other evidence under the Chapter or the rules made thereunder; or
(b)       an audit has been initiated,
            and such inquiry, investigation or audit is pending as on the 1st day of March, 2013, then, the designated authority shall, by an order, and for reasons to be recorded in writing, reject such declaration.”
Sub-section (2) of Section 106 envisages a situation under which there can be a rejection of the declaration made by assessee. But sub-section (1) of Section 106 deals with a situation where the consideration of the application of the assessee has to be made. In this regard, the focus of attention in this case is on the second proviso to sub-section (1) of Section 106, which states that if there is a notice or order of determination, which has been issued to a person in respect of any period on any issue, no declaration shall be made with regard to tax dues on the same issue for any subsequent period. In this regard, the contention of the Counsel for the petitioner has been that in the show cause notice dated 19-3-2010 culminating in the order dated 23-12-2010, there was no invocation of Section 73A of the Act and therefore the proviso does not apply in the instant case, but the impugned order does not take into consideration that aspect of the matter. There is considerable force in the aforesaid submission inasmuch as the findings given in the order dated 23-12-2010 prima facie was with regard to Section 73 of the Act and not Section 73A. But the matter does not rest here. The submission of the petitioner as to whether Section 73A was invoked in the earlier show cause notice dated 19-3-2010 culminating in the order dated 23-12-2013 is a matter which has to be considered in depth by the first respondent-authority.
The other aspect of the matter is, one of the reasons given in the impugned order was that the earlier show cause notice and the order dated 23-12-2010 was for the period October 2004 to March 2009, part of which period is covered under the Scheme, which was from 1-10-2007 up to 31-12-2012. It was reasoned by the respondent officer that for the period October 2007 to March 2009, there was already an order passed on 23-12-2010 and therefore, the petitioner was not entitled to file the application under the Scheme. That reason is not correct in view of the fact that the period for tax dues is 1-10-2007 up to 31-12-2012. That period cannot be related to any period in respect of which an order has been passed by the authority under Section 73 of the Act. If there were any dues between the aforesaid dates, then the eligibility to file the application under the Scheme would arise provided no order was passed prior to the enforcement of the Scheme on any issue. Therefore, linking the period of tax dues under the Scheme with the period in respect of which the order dated 23-12-2012 has been passed in petitioner’s case is not correct as that order was prima facie not in respect of Section 73A of the Act.
In the result, the writ petition is allowed by quashing the impugned order. The matter is remanded to the first respondent to reconsider the issue in light of whether the earlier show cause notice dated 19-3-2010 culminating in the order dated 23-12-2010 in respect of which certain issues arose are the very same issues which have arisen for the subsequent period namely, April 2012 to December 2012 in respect of which, the petitioner seeks benefit under the Scheme. Since the parties are represented by their respective Counsel, the petitioner is directed to appear before the first respondent on 30-7-2014, without insisting on any separate notice from that authority. It is needless to observe that the first respondent on hearing the petitioner’s authorised representative shall reconsider the application made by the petitioner under the Scheme in light of the observations made supra and in accordance with law and in an expeditious manner and pass a speaking order.
 
Decision:- Petitions allowed.
 
Comment:- The analogy of the case is that assessee could not be denied benefit of availment of the scheme. If there were any dues between dates covered by Scheme, then the eligibility to file the application under the Scheme would arise provided no order was passed prior to the enforcement of the Scheme on any issue. Linking of period of tax dues under Scheme with period in respect of which earlier show cause notice was issued, was wrong. Application for availment of scheme could not be dismissed without considering this plea of assessee.
 
Prepared by:- Monika Tak
 
 
 
 

Department News


Query

 
PRADEEP JAIN, F.C.A.

Head Office : -

Address :
"SUGYAN", H - 29, SHASTRI NAGAR, JODHPUR (RAJ.) - 342003

Phone No. :
0291 - 2439496, 0291 - 3258496

Mobile No. :
09314722236

Fax No. :0291 - 2439496


Branch Office : -

Address:
1008, 10th FLOOR, SUKH SAGAR COMPLEX,
NEAR FORTUNE LANDMARK HOTEL, USMANPURA,
ASHRAM ROAD, AHMEDABAD-380013

Phone No. :
079-32999496, 27560043

Mobile No. :
093777659496, 09377649496

E-mail :pradeep@capradeepjain.com