Judgment
IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR. JUSTICE DINESH KUMAR SINGH WEDNESDAY, THE 18TH DAY OF OCTOBER 2023 / 26TH ASWINA, 1945 WP(C) NO. 29705 OF 2022 PETITIONER:
GEORGE JOSEPH KANJAMALA AGED 65 YEARS S/O JOSEPH KANJAMALA , KANJAMALA HOUSE, ALAKODE.P.O, KANNUR DISTRICT-670571, PIN – 670 571.
BY ADV K.V.RASHMI RESPONDENTS:
1 THE ASSISTANT COMMISSIONER CENTRAL GST AND CENTRAL EXCISE, KANNUR DIVISION, KUZHIKUNNU,KANNUR-670001, PIN – 670 001.
2 THE SUPERINTENDENT CENTRAL TAX AND CENTRAL EXCISE, THALIPARAMBA RANGE, THALIPARAMBA-670141, PIN – 670 141.
BY ADVS.
SRI.SREELAL WARRIAR, C.G.C R.HARISHANKAR THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 18.10.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
WP(C) NO. 29705 OF 2022 2 DINESH KUMAR SINGH, J.
-------------------------------------------- WP(C) NO. 29705 OF 2022 -------------------------------------------- Dated this the 18th day of October, 2023 J U D G M E N T 1.
The present writ petition has been filed by the petitioner impugning Ext.P9 and Ext.P10 order in original and penalty order passed by the Assistant Commissioner, Central GST and Central Excise in respect of arrears of Service Tax.
2.
The petitioner is the owner of the building by name ‘KM Tower’ situated in the New Bazar, Alakode, Kannur District. The petitioner rented out the said premises to different persons for carrying out commercial activities. The rent received by the petitioner was made liable to service tax under the category of ‘Renting of immovable property’ service as per the Finance Act, 1994 as amended from time to time.
3.
It was alleged by the respondent that on
WP(C) NO. 29705 OF 2022 3 investigation conducted by the Divisional Preventive Unit of Kannur Division, it was noticed that the service tax and cess were in arrears from the petitioner in respect of renting of the property. The petitioner was served with a show cause notice to recover the service tax and cess on the rental incomes for the period between 2011-2012 to 2014-2015.
4.
The 1st respondent also issued the Form No.3 under the SVLDRS Scheme (Sabka Vishwas–(Legacy Dispute Resolution) Scheme) fixing the estimated payable amount as Rs.1,75,897.50 and Rs.86,151.30 respectively.
5.
The scheme came to lay down on 30.06.2020.
However, the payment under the scheme has been made by 01.07.2020 by 12 a.m. There is no dispute that the petitioner has paid the said amount by two challans on 01.07.2020 in Ext.P5.
6.
Learned counsel for the petitioner therefore submits that after the petitioner has already remitted the amount under the SVLDRS Scheme, the impugned
WP(C) NO. 29705 OF 2022 4 order Ext.P9 and Ext.P10 are illegal and liable to be quashed.
7.
On the other hand, learned counsel for the Revenue submits that the petitioner did not pay the amount on or before 01.07.2020 by 12 a.m and therefore, the petitioner is not entitled for the benefit under the SVLDRS Scheme.
8.
It is not been disputed that the amount assessed under SVLDRS Scheme has been paid by the petitioner on 01.07.2020. The only question is whether the petitioner has paid the amount before 12 a.m or after 12 a.m. This Court find that when the amount has been paid on the last date of payment i.e., 01.07.2020, uploading of the said amount by the Bank after 12 a.m in the account of the Service Tax can not make much difference and therefore, it should be treated as the petitioner has paid the amount in Ext.P5 under the SVLDRS Scheme. If the petitioner has paid the amount, no question of passing the impugned order Ext.P9 and Ext.P10.
WP(C) NO. 29705 OF 2022 5 9.
Therefore, the present writ petition is allowed and impugned orders are hereby set aside.
Sd/- DINESH KUMAR SINGH JUDGE rpr
WP(C) NO. 29705 OF 2022 6 APPENDIX OF WP(C) 29705/2022 PETITIONER’S EXHIBITS Exhibit-P1 TRUE COPY OF THE SHOW CAUSE NOTICE ISSUED BY THE 1ST RESPONDENT DATED 16.04.2019.
Exhibit-P2 TRUE COPY OF THE FORM 3 ISSUED UNDER THE SVLDRS NO.L18129SV3011 DATED 18.12.2019.
Exhibit-P2A TRUE COPY OF THE FORM NO.3 ISSUED UNDER THE SVLDRS NO.L311219SV300633 DATED 31.12.2019.
Exhibit-P3 TRUE COPY OF THE REQUEST DATED 30.01.2020 SUBMITTED BY THE PETITIONER BEFORE THE 2ND RESPONDENT.
Exhibit-P4 TRUE COPY OF THE MANDATE FORMS/ CHALLANS ISSUED BY THE RESPONDENTS.
Exhibit-P5 TRUE COPY OF THE BANCK RECEIPT RECEIVED FROM THE BANK SHOWING THE REMITTANCE DATED 01.07.2020 Exhibit-P6 TRUE COPY OF THE NOTICE DATED 12.08.2021 ISSUED BY THE 1ST RESPONDENT.
Exhibit-P7 TRUE COPY OF THE RECORD OF THE PERSONAL HEARING ISSUED BY THE 1ST RESPONDENT.
Exhibit-P8 TRUE COPY OF THE COVERING NOTE WITHOUT ENCLOSEURE DATED 17.08.2021.
Exhibit-P9 TRUE COPY OF THE ORDER DATED 31.08.2021 ISSUED ON 03.01.2022 BY THE 1ST RESPONDENT.
Exhibit-P10 TRUE COPY OF THE NOTICE DATED 02.08.2022 ISSUED BY THE 2ND RESPONDENT.
RESPONDENT EXHIBITS Exhibit R1 ( a) True copy of notification No. 1/2020 Central Excise (N.T.) dated14-05-2020.