Mumtazbibi Yusufkhan Rangawala vs Union Of India

                                                                                    NEUTRAL CITATION




    C/SCA/6525/2021                                  ORDER DATED: 14/09/2023

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          IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

            R/SPECIAL CIVIL APPLICATION NO. 6525 of 2021

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                  MUMTAZBIBI YUSUFKHAN RANGAWALA
                               Versus
                           UNION OF INDIA
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Appearance:
VASIM MANSURI(8824) for the Petitioner(s) No. 1
MS HETVI H SANCHETI(5618) for the Respondent(s) No. 1,2,3
NOTICE SERVED BY DS for the Respondent(s) No. 4
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 CORAM:HONOURABLE MR. JUSTICE BIREN VAISHNAV
       and
       HONOURABLE MR. JUSTICE BHARGAV D. KARIA

                              Date : 14/09/2023

                         ORAL ORDER

(PER : HONOURABLE MR. JUSTICE BIREN VAISHNAV)

1.Heard learned advocate Mr.Vasim Mansuri for the petitioner and learned advocate Ms.Hetvi Sancheti for the respondent nos.1 to 3.

2.Rule returnable forthwith. Learned advocate Ms.Hetvi Sancheti waives service of notice of rule on behalf of respondent nos.1 to 3.

3.With the consent of learned advocates appearing for the respective parties the matter is taken up for final hearing.

NEUTRAL CITATION C/SCA/6525/2021 ORDER DATED: 14/09/2023 undefined

4.The prayer in this petition is that the orders dated 05.12.2019 and 17.01.2020 rejecting the declaration of the petitioner under Sabka Vishwas (Legacy Dispute Resolution) Scheme, 2019, is set aside. It is not in dispute that in the case of a main noticee M/S Sunshine Corporation, Special Civil Application No.23250 of 2019 was filed wherein this Court by an order dated 01.02.2022, the petition has been allowed with certain directions. Ms.Hetvi Sancheti learner Counsel appearing for the Revenue- respondent files an affidavit which indicates that in light of the directions issued by this Court in the order dated 01.02.2022, the case of the petitioner shall also be considered on the same lines and in light of the directions issued therein. Para no.6 of the affidavit reads as under:

"6. With respect to Para 4:: Special Civil Application No. 23250 of 2019 filed by M/s. Sunshine Corporation has already been decided vide Final Order Dated 01.02.2022 wherein High Court of Gujarat directed the department to consider the SVLDRS application of the M/s. Sunshine Corporation under the category of litigation, "sub category SCN Page 2 of 6 Downloaded on : Sat Sep 16 17:11:52 IST 2023 NEUTRAL CITATION C/SCA/6525/2021 ORDER DATED: 14/09/2023 undefined involving duty pending. The paragraph 18 and 19 of the said Order are reproduced here under:

"18. in such circumstances referred to above, this writ application succeeds and is hereby allowed. The orders dated 28.11.2019 and 19.12.2019 respectively are hereby quashed and set aside. The matter is remitted to the respondents. The respondents shall accept the form of declaration under the category of "litigation" sub- category "SCN involving duty pending" and undertake the process of verification through the designated committee.

19. Let the aforesaid exercise be undertaken at the earliest."

                       Accordingly,      as     per   the
                       directions    of     Hon'ble  High

Court, discharge certificate in Form No. SVLDRS-4 dated 17.05.2023 was issued to M/s. Sunshine Corporation for Rs. 1,33,82,430/- providing the relief of Tax amounting to Rs. 66,91,215/-."

5.In the order dated 01.02.2022 by allowing the petition this Court observed as under:

NEUTRAL CITATION C/SCA/6525/2021 ORDER DATED: 14/09/2023 undefined "12. In view of the aforesaid the writ applicants submitted a form of declaration on 17.12.2019 under the category of "arrears".

13. The aforesaid form of declaration came to be rejected on the ground as under:-

"Under Order No. A/11472/2019 dated 2.08.2019, the CESTATE has remanded the matter for de-novo proceedings. Thus, the case assumes the nature of SCN pending adjudication as on 2.08.2019. Accordingly, the application does not fall under the category of arrears as defined under Finance (No.2) Act, 2019. Hence the application is rejected."

14. Thus, first in point of time the declaration came to be rejected on the ground that the correct category would be "pending appeal" and not "show-cause-notice pending". A second form of declaration came to be rejected on the ground that "show cause notice is pending" for adjudication therefore, the case would not fall under the category of "arrears" as defined under the Finance (No.2) Act 2019.

NEUTRAL CITATION C/SCA/6525/2021 ORDER DATED: 14/09/2023 undefined

15. In such circumstances referred to above, the writ applicants are before this Court.

16. We have heard Mr. Sunit M. Shah, the learned Counsel assisted by Mr. Vasim Mansuri, the learned advocate appearing for the writ applicants and Mr. Nikunt K Raval, the learned Standing Counsel appearing for the respondents.

17. We are of the view that the respondents should have taken into consideration the fact that once there is an order of remand the entire matter stands revived from its inception. The matter as on date could be said to be pending before the Commissioner. In such circumstances it cannot be said that the matter was finally heard on or before 30.6.2019. The stance of the respondents cannot be said to be in consonance with the object and reasons underlying the scheme.

18. In such circumstances referred to above, this writ application succeeds and is hereby allowed. The orders dated 28.11.2019 and Page 5 of 6 Downloaded on : Sat Sep 16 17:11:52 IST 2023 NEUTRAL CITATION C/SCA/6525/2021 ORDER DATED: 14/09/2023 undefined 19.12.2019 respectively are hereby quashed and set aside. The matter is remitted to the respondents. The respondents shall accept the form of declaration under the category of "litigation" sub-category "SCN involving duty pending" and undertake the process of verification through the designated committee."

6.Since the petitioner is a co-noticee thereof the benefit of the judgment of this Court and the directions issued therein shall apply to the case of the petitioner. The orders dated 05.12.2019 and 17.01.2020 therefore are quashed and set aside. The petition is allowed. Rule is made absolute.

(BIREN VAISHNAV, J) (BHARGAV D. KARIA, J) URIL RANA Page 6 of 6 Downloaded on : Sat Sep 16 17:11:52 IST 2023