Singh Enterprises (A Proprietorship ... vs Union Of India
2024 Latest Caselaw 1424 Jhar

Jharkhand High Court

Singh Enterprises (A Proprietorship ... vs Union Of India on 12 February, 2024

Author: Rongon Mukhopadhyay

Bench: Rongon Mukhopadhyay, Deepak Roshan

                                                    1




         IN THE HIGH COURT OF JHARKHAND AT RANCHI
                                 W.P. (T) No.1710 of 2022
                                                    ......

Singh Enterprises (a Proprietorship concern), through its Proprietor, namely, Munna Singh. ... Petitioner Versus

1. Union of India, through the Commissioner of CGST & C.X., Jamshedpur, having its office at Outer Circle Road, Bistupur, P.O. Bistupur, P.S. Bistupur, Jamshedpur, District East Singhbhum, PIN 831001 (Jharkhand).

2. Joint Commissioner of CGST & C.X., Jamshedpur, having its office at Outer Circle Road, Bistupur, P.O. Bistupur, P.S. Bistupur, Jamshedpur, District- East Singhbhum.

3. Director General of Goods and Services Tax (GST) Intelligence, Regional Unit, Jamshedpur, through its Additional Director, Jamshedpur, having its office at 2nd and 3rd Floor, Shaurya Trade Centre, Dhalbhum Road, P.O. and P.S. Sakchi, Jamshedpur, District East Singhbhum. ... Respondents

CORAM: Hon'ble Mr. Justice Rongon Mukhopadhyay, Hon'ble Mr. Justice Deepak Roshan .....

For the Petitioner : Mr. Sumeet Gadodia, Advocate, Mrs. Shilpi Sandil Gadodia, Advocate, Mr. Ranjeet Kushwaha, Advocate For the Resp.-State : Mr. Amit Kumar, Advocate.

.....

10/Dated: 12th February, 2024 Heard learned counsel for the parties. Per Deepak Roshan, J

2. The instant writ application has been filed by the Petitioner primarily praying therein for the following reliefs:-

(i) For issuance of an appropriate writ/order/direction for quashing/setting aside the show cause notice dated 29.12.2020 (Annexure-11) issued by Respondent No.3 for the period April, 2015 to June, 2017, especially in view of the fact that the Petitioner admittedly for the same said period and the

amount in dispute availed the benefit of 'SabkaVishwas Legal Dispute Resolution Scheme (SVLDRS), 2019 and is entitled to discharge the due amount under the Scheme up to 29th May, 2022.

(ii) For issuance of further appropriate writ/order/direction including Writ of Certiorari for quashing/setting aside order-in-original :

04/S.Tax/Joint Commr/2022 dated 28.02.2022 (Annexure-13) passed by Respondent No.2, wherein liability of service tax, interest and penalty has been fastened upon the Petitioner despite the fact that the Petitioner has already availed the benefit of 'SabkaVishwas Legal Dispute Resolution Scheme (SVLDRS), 2019' and is entitled for issuance of discharge certificate in its favour by making payment of due amount up to 29th May, 2022.

(iii) For issuance of further writ/order/direction including Writ of Mandamus directing Respondents to issue discharge certificate to the Petitioner in terms of Section 127(8) of 'Sabka Vishwas Legal Dispute Resolution Scheme (SVLDRS), 2019' after accepting payment from the Petitioner in respect of the declaration made by the Petitioner under Section 125 of 'Sabka Vishwas Legal Dispute Resolution Scheme (SVLDRS), 2019' which the Petitioner is entitled to pay within the extended period up to 29th May, 2022 in terms of the order dated 10th January, 2022 passed by Hon'ble Supreme Court of India in Miscellaneous Application No. 21 of 2022 in Miscellaneous Application No. 665 of 2021 in Suo Motu Writ Petition (C) No. 3 of 2020.

3. The admitted facts of the case, as would be evident from the pleadings, are that Petitioner is a Proprietorship concern and was registered under the erstwhile Finance Act, 1994 and was primarily engaged in the business of providing taxable

services under different categories of services namely, 'Supply of tangible goods services', 'Maintenance and repair service' and 'Works contract service'. An investigation was initiated against the Petitioner by the officers of Director General of Goods and Services Tax Intelligence, Regional Unit, Jamshedpur against the Petitioner and summons were issued to the Petitioner and statement of the Petitioner's representative was duly recorded by DGGI. Investigation against the Petitioner was pending and liability of the Petitioner was quantified and during pendency of such investigation, a Settlement Scheme namely, 'SabkaVishwas Legal Dispute Resolution Scheme (SVLDRS), 2019' was incorporated in Chapter-V of Finance Act, 2019 by the Central Government which was effective from 1st August, 2019. Under the said Scheme, relief was offered to a declarant in respect of duty, tax and penalty even in cases where inquiry/ investigation/ audit was pending and where the amount was quantified on or before 30th June, 2019.

Since, admittedly, against the Petitioner, investigation by DGGI was pending and the amount was quantified on or before 30th June, 2019, Petitioner availed SVLDR Scheme, 2019 by submitting a Declaration in Form SVLDR-1 filed on 14.01.2020 giving duty details for an amount of Rs. 88,21,496/-. Pursuant to filing of said Declaration, a Statement in terms of Section 127 of SVLDR Scheme read with Rule 6 of SVLDR Rules was issued to the Petitioner extending the tax relief of Rs. 44,10,748/- and, after adjustment of the amount of pre-deposit of Rs. 1.00 Lakh vide Form SVLDR-3, a sum of Rs. 43,10,748/- was determined as payable by the Petitioner. Said amount, under the Scheme, was payable within one month of issuance of SVLDR-3, but the Government of India, vide Notification No.1/2020-Central Excise, dated 14th May, 2020, extended the time limit of depositing the amount by substituting the words "within a period thirty days"

with the words and figure "on or before 30th day of June, 2020". In view of aforesaid amendment carried out vide Notification No.1/2020 dated 14th May, 2020, the liability determined pursuant to the declaration submitted by Petitioner of Rs. 43,10,748/- as contained in SVLDR-3, was required to be paid by Petitioner up to 30th June, 2020.

4. It is an admitted fact that Petitioner has not paid the aforesaid amount by 30th June, 2020, and, in view of the said fact, the declaration filed by Petitioner under SVLDR Scheme lapsed. Under the said circumstances, a show cause notice dated 29.12.2020 was issued to the Petitioner towards liability of service tax for the period April, 2015 and June, 2017, wherein Petitioner was show caused as to why service tax liability, amounting to Rs. 88,21,496/-, be not determined against it including penalty and interest thereupon.

Petitioner submitted its defence reply to the show cause notice, vide reply dated 16.02.2022, and placed reliance upon the order passed by Hon'ble Apex Court in Suo Motu Cognizance Case being SMW(C) No. 3 of 2020 and contended that in view of the order passed by Hon'ble Apex Court, period for making payment from 15.03.2020 to 20.02.2022 was excluded and, as per the order of the Hon'ble Apex Court dated 10.01.2022 in Suo Motu Cognizance Case No. 3/2020, Petitioner had time till 28th May 2022 for making payment of the amount under SVLDR Scheme. Under the said circumstances, in the show cause reply, it was contended that since Petitioner still has time for payment under SVLDR Scheme, for which its declaration has already been accepted earlier, show cause notice issued to the Petitioner is not tenable in the eye of law. However, reply submitted by Petitioner was not accepted by Respondent-Department and an Adjudication Order being Order-in-Original: 04/S.Tax/Joint Commr./2022 dated 28.02.2022 was passed by Respondent No.2, wherein tax, interest and penalty was fastened upon the

Petitioner. Being aggrieved, Petitioner approached this Hon'ble Court by filing instant writ application for the reliefs as stated hereinabove.

5. Mr. Sumeet Gadodia, learned counsel appearing for the petitioner submits that the Petitioner has emphatically argued that issuance of show cause notice dated 29.12.2020 and passing of subsequent Order-in-Original dated 28,02.2022 are in utter defiance to the provisions of SVLDR Scheme, 2019 especially in view of the fact that for the same said period i.e. for April, 2015 to June, 2017, Petitioner has availed the benefit under SVLDR Scheme and, under the said circumstances, no show cause notice and/or Order-in-Original could have been issued/passed by Respondent-authority in respect of same said liability for which declaration has been filed under the Scheme. He further submits that under the Scheme, Petitioner filed Declaration in Form SVLDR-1 on 14.01.2020, which was accepted by Respondent authority while issuing Statement in SVLDR-3 and the total liability determined to be payable under the Scheme was Rs. 43,10,748/- It has been submitted that said amount, which was originally to be paid within 30 days of issuance of SVLDR-3 was extended by Central Government itself vide Notification No. 1/2020 dated 14.05.2020 up to a period of 30th June, 2020. He further submits that with effect from 23rd March, 2020, due to widespread of COVID-19 Virus, lockdown was imposed and the Hon'ble Apex Court, taking into consideration the aforesaid emergent situation, was pleased to extend the period of limitation from time to time by passing orders in Suo Motu Writ Petition (Civil) No. 3 of 2020 in respect of Judicial and Quasi-Judicial proceedings and extended, from time to time, the period of limitation till 28.02.2022 with a further latitude of 90 days therefrom, that would expire on 28.05.2022.

6. Learned counsel further submits that in view of extension of period of limitation granted by Hon'ble Apex Court

in Suo Motu Writ Petition (Civil) No. 3 of 2020 up to 28.05.2022, it was open for the Petitioner to make payment up to the said date, and, issuance of show cause notice and/or passing of Order-in-Original prior to the said date is bad in law and is liable to be set aside. By placing reliance upon provisions of Section 127 of SVLDR Scheme, it has been contended that under the said Scheme, after a declaration is filed by a declarant, the same is required to be examined by the Designated Committee; and the Designated Committee is required to give opportunity of hearing to the Declarant and to thereafter pass order in accordance with law.

He further submits that from perusal of Section 127 of the Scheme, it would be evident that said provision is quasi-judicial in nature and since proceedings are quasi- judicial in nature, the period of limitation for payment of the amount stands extended in view of the order passed by Hon'ble Apex Court in Suo Motu Writ Petition (Civil) No. 3 of 2020. Reliance has been placed by the Counsel for the Petitioner on following Judgments to contend, inter alia, that proceedings under SVLDR Scheme are quasi-judicial proceedings and in view of the Judgment of Hon'ble Apex Court, which had extended the period of limitation for quasi-judicial proceedings, the time for payment available to the Petitioner stood extended up to 28th May, 2022. Said Judgments are as under: -

(i) Design Point Consult Private Limited vs. The Union of India & Others, reported in 2022-VIL-85- GUJ-ST (Paras 9 & 17).

(ii) Kiran Borewells Vs. Union of India, reported in 2019 SCC Online Kar 2665 (Verbatim).

(iii) Fashion Dezire & Anr. Vs. Union of India, reported in 2021 SCC Online All 579 (Para 25).

7. Mr. Amit Kumar learned counsel for the respondent has vehemently opposed the contentions of the Petitioner and has submitted that under SVLDR Scheme and the Rules framed

thereunder, a declarant was required to make payment of the amount so determined by the Designated Committee within a period of 30 days from the date of receipt of Form SVLDR-3. He further submits that the period of 30 days was extended by Government of India vide Notification dated 14th May, 2020 and it was provided that payment can be made on or before 30th June, 2020. He further submits that, admittedly, in the present case, Petitioner filed declaration on 14th January, 2020 and said declaration was accepted by the Designated Committee on 6th February, 2020.

8. Learned counsel further submits that under the Scheme, Petitioner was originally required to make payment of the amount as per the declaration up to 5th March, 2020, but in view of Notification No. 1/2020 dated 4th May, 2020, the period of payment was extended up to 30th June, 2020, but still Petitioner has failed to make payment of the due amount and, under the said circumstances, declaration filed by Petitioner has lapsed. It is only thereafter that show cause notice was issued to the Petitioner and the Order-in-Original has been passed and there is no illegality in the same. He further submits that undoubtedly, proceeding for determination of liability under the Scheme of 2019 is in the nature of Quasi-Judicial proceeding and once liability is determined, the proceedings are over and the declarant is required to make payment of the amount within the stipulated time; and absence of payment renders the declaration as lapsed and/or non est in the eye of law.

He further submits that by virtue of the order passed by Hon'ble Apex Court in Suo Motu Writ Petition No.(C) 3 of 2020, only the period of limitation prescribed under the General or Special Law in respect of all Judicial or Quasi- Judicial proceedings have been extended up to 28th February, 2022 with a further period of 90 days therefrom i.e. up to

28.05.2022. However, it has been submitted that said order passed by Hon'ble Supreme Court extending the period of limitation cannot come to the rescue of the Petitioner, as the said order does not extend the period specified under the Scheme for payment of due liability which has already been determined by Designated Authority.

9. Learned counsel for the respondent also placed reliance upon an unreported Judgment of Hon'ble Allahabad High Court in Writ Tax No. 541 of 2021 dated 11.08.2021, wherein under similar circumstances where payment under the Scheme was not made pursuant to the declaration filed by a declarant, Hon'ble Allahabad High Court was pleased to dismiss the writ petition. It has been submitted that said order passed by Hon'ble Allahabad High Court was challenged before Hon'ble Apex Court in Special Leave to Appeal No. 2070 of 2022 (M/s. Yashi Construction Vs. Union of India and Ors.) and said S.L.P. was dismissed by Hon'ble Supreme Court vide order dated 18.02.2022. In view of the above, it has been submitted that Petitioner is not entitled to any relief from this Hon'ble Court.

10. Having heard learned counsel for the rival parties and after perusing the respective affidavit; the only question involved in the instant writ application is 'Whether in view of the order passed by Hon'ble Apex Court in Suo-Motu Writ Petition No.(C) 03 of 2020, the period prescribed under SVLDR Scheme, 2019 for payment of the amount pursuant to declaration stand extended or not?'

In order to appreciate the aforesaid contentions, we think it appropriate to quote the order of Hon'ble Apex Court passed in Suo-Motu Writ Petition No.(C) 3 of 2020, being order dated 23.03.2020 and para-5 of the order dated 10.01.2022, which are quoted herein below: -

"This Court has taken SuoMotu cognizance of the situation arising out of the challenge faced by the country on account of Covid-19 Virus and resultant difficulties that may be faced by litigants across the country in filing their petitions/applications/suits/ appeals/all other proceedings within the period of limitation prescribed under the general law of limitation or under Special Laws (both Central and/or State).

To obviate such difficulties and to ensure that lawyers/litigants do not have to come physically to file such proceedings in respective Courts/Tribunals across the country including this Court, it is hereby ordered that a period of limitation in all such proceedings, irrespective of the limitation prescribed under the general law or Special Laws whether condonable or not shall stand extended w.e.f. 15th March 2020 till further order/s to be passed by this Court in present proceedings.

We are exercising this power under Article 142 read with Article 141 of the Constitution of India and declare that this order is a binding order within the meaning of Article 141 on all Courts/Tribunals and authorities.

This order may be brought to the notice of all High Courts for being communicated to all subordinate Courts/Tribunals within their respective jurisdiction.

Issue notice to all the Registrars General of the High Courts, returnable in four weeks."

Order dated 10.01.2022 (relevant Para-5)

"5. Taking into consideration the arguments advanced by learned counsel and the impact of the surge of the virus on public health and adversities faced by litigants in the prevailing conditions, we deem it appropriate to dispose of the M.A. No. 21 of 2022 with the following directions:

I. The order dated 23.03.2020 is restored and in continuation of the subsequent orders dated 08.03.2021, 27.04.2021 and 23.09.2021, it is directed that the period from 15.03.2020 till 28.02.2022 shall stand excluded for the purposes of limitation as may be prescribed under any general or special laws in respect of all judicial or quasi-judicial proceedings.

II. Consequently, the balance period of limitation remaining as on 03.10.2021, if any, shall become available with effect from 01.03.2022.

III. In cases where the limitation would have expired during the period between 15.03.2020 till 28.02.2022, notwithstanding the actual balance period of limitation remaining, all persons shall have a limitation period of 90 days from 01.03.2022. In the event the actual balance period of limitation remaining, with effect from 01.03.2022 is greater than 90 days, that longer period shall apply.

IV. It is further clarified that the period from 15.03.2020 till 28.02.2022 shall also stand excluded in computing the periods prescribed under Sections 23 (4) and 29A of the Arbitration and Conciliation Act, 1996, Section 12A of the Commercial Courts Act, 2015 and provisos (b) and (c) of Section 138 of the Negotiable Instruments Act, 1881 and any other laws, which prescribe period(s) of limitation for instituting proceedings, outer limits (within which the court or tribunal can condone delay) and termination of proceedings."

11. A bare perusal of the order passed by Hon'ble Apex Court, it would be evident that Hon'ble Supreme Court took suo-motu cognizance of the situation arising out of the challenge faced by the country on account of COVID-19 vires and resultant difficulties thereupon faced by litigants across the country in filing their petitions/applications/suits/appeals/all other proceedings within the period of limitation. It is in that background and to obviate the difficulties, Hon'ble Supreme Court extended the period of limitation of all such proceedings irrespective of the limitation prescribed under General Law or Special Law. The last extension was granted vide order dated 10.01.2022 and period of limitation between the periods 15.03.2020 till 28.02.2022 was excluded for the purpose of limitation prescribed under General or Special Law in respect of all judicial and quasi-judicial proceedings. The aforesaid order is based on the principle 'Stop the Clock' meaning thereby that period covered in the judgment never appeared in the calendar.

12. Now, the question which arises for determination in the present writ application is 'whether the case of the Petitioner would be covered under the aforesaid order of Hon'ble Supreme Court and the period prescribed under SVLDR Scheme, 2019 and the corresponding Rules for payment of the amount as determined by Designated Committee would stand extended in view of the exclusion of the period of limitation by the Hon'ble Apex Court for the period 15.03.2020 to 28.02.2022?'

13. Undoubtedly, Section 127 of the Scheme of 2019 provides, inter alia, that Designated Committee would, within 60 days of receipt of declaration, issue a Statement in electronic form i.e. SVLDR-3 to the declarant determining the amount payable by said declarant. Further, said Section provides, inter alia, that where the amount declared by a declarant exceeds the amount estimated by Designated Committee, the Designated Committee shall give opportunity of being heard to the declarant and, thereafter, determine the amount payable by the declarant. There is no dispute in the fact that the procedure prescribed under Section 127 of the Scheme partakes the nature of quasi-judicial proceedings. However, once the determination is over by the Designated Committee, the declarant is liable to make payment of the amount so determined within a period of 30 days. Said period of 30 days was substituted vide Notification No. 1/2020- Central Excise dated 14th May, 2020 by the words "on or before 30th day of June, 2020'. Thus, the period for making payment pursuant to determination of the designated authority was extended by the Central Government up to 30th June, 2020.

14. In our opinion, the order passed by Hon'ble Apex Court in Suo Motu Writ Petition No.(C) 03 of 2020 had an effect of extending the period of limitation under the General Law or under Special Law pertaining to judicial and/or quasi-judicial proceedings, but the said order did not extend the time

limitation prescribed for making payment of an amount which has already been determined pursuant to culmination of quasi- judicial proceedings. In the present case, admittedly, pursuant to declaration filed by Petitioner on 14.01.2020, the Designated Committee has accepted the said declaration and vide Statement issued in Form SVLDR-3 dated 06.02.2020, has communicated to the Petitioner the amount payable by it. The Petitioner never raised any dispute with respect to the amount payable as determined by the Designated Committee and there was no occasion to raise any dispute as Designated Committee has accepted the amount declared by the declarant. Under the said circumstances, in our opinion, the process of adjudication being quasi-judicial in nature already ended on 06.02.2020 i.e. the date on which Statement in Form SVLDR-3 was issued to the Petitioner. Thereafter, Petitioner was required to only discharge the liability in terms of Section 127(5) of the Scheme read with Notification No. 1/2020 dated 14th May, 2020 up to 30th June, 2020. However, the Petitioner has, admittedly, failed to discharge the said liability. It is reiterated that quasi- judicial proceeding was restricted to determination of the amount, exercise which was already completed on 06.02.2020 and in view of the order passed by Hon'ble Apex Court, the period of limitation could have been extended only for the purpose of determination of the amount by Designated Committee and not for the purpose of making payment pursuant to determination already made by Designated Committee.

15. In our opinion, contention of the Petitioner that time limit prescribed for payment stood extended by virtue of the order passed by Hon'ble Apex Court, is wholly misconceived and not tenable in the eye of law. In this regard reference may be made to an order dated 18.02.2022 passed by Hon'ble Apex Court in Special Leave to Appeal No. 2070 of 2022 (M/s. Yashi

Construction Vs. Union of India & Ors, wherein Hon'ble Supreme Court has held as under: -

"It is an admitted fact that the petitioner did not deposit the amount under the Scheme within the time limit provided under the Scheme, i.e. within 30 days.

In that view of the matter, the High Court has rightly refused to grant relief to the petitioner for extension of the period to make the deposit under the Scheme. It is a settled proposition of law that a person, who wants to avail the benefit of a particular Scheme has to abide by the terms and conditions of the Scheme scrupulously. If the time is extended not provided under the Scheme, it will tantamount to modifying the Scheme which is the prerogative of the Government.

Hence, the Special Leave Petition stands dismissed. Pending application(s), if any, shall stand disposed of."

16. In view of cumulative facts and circumstances mentioned hereinabove, we see no reason to interfere with the instant writ petition and, accordingly, writ petition is dismissed. Pending Interlocutory applications, if any, shall stand disposed of. However, in the facts and circumstances of the case, there shall be no order as to costs.

(Rongon Mukhopadhyay, J)

(Deepak Roshan, J)

Amardeep/AFR