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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NITIN JAMDAR, ABHAY AHUJA, JJ.
K. Raheja Private Limited – Petitioner
Versus
Union of India, Ministry of Finance, Department of Revenue, New Delhi – Respondent
Writ Petition No. 5097 of 2022
Decided On : 27-01-2023
Constitution of India, 1950 – Article 226 – Finance Act, 1994 – Section 73, 75, 76 – Central Goods and Services Tax Act, 2017 – Section 142, 174 – Cenvat Credit Rules, 2004 – Rule 14, 15(3), 6(3) (I) – Claiming Service Tax law – Claiming Penalty – Repeal and saving – Liquidation of legacy disputes – Penalty for failure to pay service tax – Interest on delayed payment of service tax – Recovery of service tax not levied or paid or short-levied or short-paid or erroneously refunded – Provided that where any claim for refund of CENVAT credit is fully or partially rejected, amount so rejected shall lapse - Whether person is eligible to opt for Scheme – Held, Scheme is a legislation introduced for liquidation of legacy disputes on one hand and recovery of unpaid taxes to government on other – Respondent cannot contend that portal was not updated – Once SVLDRS-2 has been issued and there has also been a follow up from Respondents with respect to said Form as well as hearing that was fixed at appointed date and time, Respondent-Authorities cannot renege on same – Particularly so in peculiar facts and circumstances of this case, where admittedly, rejection of SVLDRS-1 was not communicated to Petitioner, but only communicated to them after a request came from Petitioner to issue Form SVLDRS-4 – Therefore, having held that amount quantified pursuant to communication and Designated Committee having issued Form SVLDRS-2 to Petitioner and communication of rejection having been communicated to Petitioner only, Court are of view that action of Respondent Authorities ought to be quashed and set aside – Ordered Accordingly.
JUDGMENT :
ABHAY AHUJA, J.
1. This is a Petition challenging communication dated Nil March, 2020 by the Respondent No. 3-Deputy Commissioner CGST and Central Excise, Mumbai, rejecting declaration in Form SVLDRS-1 dated 20 December 2019 filed by the Petitioner under the Sabka Vishwas (Legacy Dispute Resolution) Scheme, 2019 (“SVLDR Scheme”).
2. Petitioner is a company incorporated under the Companies Act, 1956 and is inter-alia engaged in the business of real estate and related activities. Petitioner is stated to be registered under the Service Tax Rules, 1994 and upon coming into force of the CGST Act with effect from 1 July 2017, Petitioner is stated to have registered under the CGST Act as well.
3. Petitioner’s case is that it had constructed a Public Parking Lot (PPL) on plot of land bearing No. C.S. No. 2/1629 of Lower Parel Division, Plot No. 249, 249-A of Worli Scheme No. 52, G/S Ward, Opposite Hind Cycle Company, B. P. Road, Mumbai 400 025 (the “said plot”).
4. That the Municipal Corporation of Greater Mumbai (“MCGM) by its letter dated 5 May 2012 approved the proposal of grant of incentive FSI over and above the normal FSI to the Petitioner against the construction of the said PPL on the said plot.
5. Pursuant to the visit of the Superintendent, Directorate General of GST Intelligence, Mumbai (“DGGSTI”) and his team to the office of the Petitioner on 15 February 2018, Petitioner vide its letter of the same date informed the Superintendent that it had handed over the said PPL to MCGM. These facts have not been disputed by the Respondents.
6. Vide letter dated 23 March 2018 to DGGSTI, Petitioner is stated to have provided details of Cenvat credit availed by it alongwith copies of documents stating that they had ascertained that the total cenvat credit claimed for construction of PPL was Rs. 2,74,82,221/- and that they had reversed the same along with interest amounting to Rs. 1,86,14,476/- and requested the Superintendent, DGGSTI to close the proceedings.
7. The details of credit were also provided by the Petitioner vide its letter dated 11 June 2018 requesting the Superintendent to close the proceedings.
8. In the meanwhile, the SVLDR Scheme and Rules were announced to resolve pending disputes, which came into effect from 1 September 2019.
9. It is the case of the Petitioner that since the Scheme was given vide publicity, pursuant to paragraph no. 4(a) of Circular No. 1071/4/2019-CX.8 dated 27 August 2019, the Petitioner filed an application dated 20 December 2019 in Form SVLDRS-1 under the category, “Investigation, Enquiry or Audit” and subcategory “Investigation by DGGI” for the duty type “Service Tax.”
10. Petitioner vide its letter dated 23 December 2019 informed the Designated Committee about the declaration filed by the Petitioner and also informed that it had already paid a sum of Rs. 4,60,96,697/- (Service Tax of Rs. 2,66,99,489/- and Education Cess. Rs. 4,47,293/- and Secondary and Higher Education Cess Rs. 2,23,640/- and Krishi Kalyan Cess of Rs. 1,11,799/- and interest of Rs. 1,80,81,197/- on service tax, interest of Rs. 3,46,099/- on education cess, interest of Rs. 1,73,043/- on Secondary and Higher Education Cess and interest of Rs. 14,137/- on Krishi Kalyan Cess).
11. By another letter of the same date Petitioner also informed the Superintendent, DGGSTI about filing of the said declaration.
12. The Designated Committee determined the estimated amount to be payable by Petitioner as “zero” and issued Form- SVLDRS-2 dated 16 January 2020. Petitioner was also intimated that personal hearing was fixed on 22 January 2020 in case Petitioner does not agree with the estimated amount and Petitioner was further called upon to submit Form SVLDRS-2A in case any other date and time of personal hearing was desired. Petitioner submitted Form SVLDRS-2A dated 22 January 2020.
13. By an e-mail dated 29 January 2020, Petitioner was informed that it had not attended the personal hearing and was requested to contact the SVLDRS Cell in respec
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