Pratibha Jha vs. State Of U.P. And 5 Others

The present writ petition has been filed seeking a writ of mandamus directing the respondents to refund the entire amount deposited by the petitioner pursuant to orders dated 01.12.2015 and 27.08.2019. 2. Petitioner before this Court had appeared in person and had submitted that she is not proprietor of M/s. Creative Media, and it is her husband, Ashok Jha who had started the business in the name of Creative Media and opened bank account in Oriental Bank of Commerce (now known as Punjab National Bank), being the sole proprietor of the firm. As the matrimonial dispute arose between petitioner and her husband which led to initiation of proceedings by Central Excise and Service Tax Department against her in the year 2014 and she was compelled to deposit the amount as quantified by the Service Tax Department so as to save the wrath of the Department for the mi eeds of her husband. She has relied upon the decision rendered by the Family Court wherein it was found that Creative Media was a creation of her husband, Ashok Jha and not the petitioner. According to petitioner, it was in the year 2014 that her husband had uploaded the information on the website of the Service Tax Department which led to initiation of proceedings against her. She contended that the notice issued by Central Excise and Service Tax Department was replied by her and the orders dated 01.12.2015 and 27.08.2015 passed by respondents holding her liable for payment of service tax was only to harass her and was done at the instigation of her WRIT TAX No. - 1233 of 2022

Sri Gaurav Mahajan, learned counsel appearing for the Department submitted that Creative Media is a proprietorship concern and was registered with the Central Board of Excise and Customs showing the PAN number of the petitioner as an advertising service agency on 22.05.2013. In a statement made before the adjudicating authority on 09.05.2013, petitioner herself had stated that Creative Media is a proprietorship concern owned by her in her name. The officers of Anti- Evasion, Central Excise Commissionerate, Ghaziabad visited the premises on 09.05.2013 and on investigation found that for the period April, 2009 to March, 2014, no service tax was paid for the services provided. Rs.26,79,766/- was the outstanding service tax for the period plus Rs.6,38,748/- which was collected in excess but not paid, total amount Rs.33,18,514/-. A show-cause notice was issued on 20.10.2014 which was replied by the petitioner, and service tax to the tune of Rs.33,18,514/- along with interest and penalties was confirmed in the adjudication proceedings vide order dated 01.12.2015. The order was put under challenge in appeal by the petitioner and the appellate authority on 16.10.2017 remanded back the matter to be decided de novo. Again on 15.01.2019, the earlier order was confirmed by the Joint Commissioner. Aggrieved by the said order, an appeal was preferred which was dismissed by the appellate authority on 27.08.2019. 4. Before any further proceedings could be proceeded, the petitioner voluntarily applied for Sabka Vishwas Legacy Dispute Resolution Scheme (SVLDRS-2019) on 20.12.2019 and the case was settled by making a total reduced payment of Rs.14,76,806/- against liability of Rs.33,18,514/-. Thus, petitioner got a tax relief of Rs.18,41,708/-.

According to respondent counsel, as the case was settled under SVLDRS-2019 Scheme and attained finality in the year 2020 and the fact WRIT TAX No. - 1233 of 2022

Sri Mahajan invited the attention of the Court not only to the registration certificate granted on 22.05.2013 as well as statement made by petitioner before the adjudicating authority but also the application moved under SVLDRS-2019 Scheme and the benefit given to her. He also placed before the Court the Income Tax Return of the petitioner for the Assessment Year 2014-15 wherein she had shown her business income from M/s. Creative Media.

I have heard petitioner in person and counsel for the respondent and perused the material on record.

This is a case where the petitioner is seeking a refund of the service tax paid by her under the Scheme launched by Government of India called as SVLDRS-2019. The petitioner had applied before the authorities on 20.12.2019 and deposited settlement amount of Rs.14,76,806/- against an outstanding service tax against her name of Rs.33,18,514/-. Thus, she got a tax relief of Rs.18,41,708/-.

SVLDRS-2019 Scheme was voluntarily scheme introduced by Government of India and there was no compulsion of any person or party to opt for Scheme. Section 129 and 130 of the SVLDRS-2019 enacted in Parliament vide Chapter V of Finance Act (No. II) Act, 2019 clearly provides that Scheme shall be conclusive as to the matter and time period stated therein. Sections 129 and 130 are of great importance and are extracted hereasunder:- “129. (1) Every discharge certificate issued under section 126 WRIT TAX No. - 1233 of 2022

(1) Any amount paid under this Scheme,— (a) shall not be paid through the input tax credit account under the indirect tax enactment or any other Act; (b) shall not be refundable under any circumstances; (c) shall not, under the indirect tax enactment or under any other Act,— (i) be taken as input tax credit; or (ii) entitle any person to take input tax credit, as a recipient, of the excisable goods or taxable services, with respect to the matter and time period covered in the declaration. (2) In case any predeposit or other deposit already paid exceeds the amount payable as indicated in the statement of the WRIT TAX No. - 1233 of 2022

From reading of Section 130, it is clear that any amount paid under the Scheme shall not be refunded under any circumstances. Once, the petitioner had opted for the Scheme and paid the amount with full eyes open she cannot after a lapse of three years come up and claim for refund of the amount paid by her. From reading of the material on record as well as from her argument, it appears that there is some matrimonial dispute going on between the petitioner and her husband, Ashok Jha. Some of the matters have come up before this Court as well as travelled upto Hon’ble Apex Court. The plea taken by petitioner, Pratibha Jha cannot be accepted by this Court at this stage seeking refund of the service tax amount deposited by her under the Scheme, due to the fact that the documents which have been brought on record such as registration before the Service Tax Department of the year 2013, her statement before the adjudicating authorities as well as the orders passed on her application under the Scheme of 2019 clearly demonstrates that she is the proprietor of M/s. Creative Media.

The Income Tax Return filed by her for the Assessment Year 2014- 15 also reveals her business income from M/s. Creative Media. The argument raised that her husband had forged all the documents and it is a proprietorship created by her husband in the year 2005 and she is not the proprietor of the firm cannot be dealt in proceedings under Article 226 of the Constitution of India. Moreover, Ashok Jha is not party in the present writ petition. It was only on the proceedings initiated by the Central Excise and Service Tax Department that the adjudication order was passed after service of notice and thereafter appeal was decided. The petitioner instead of preferring further action being aggrieved by the appellate order dated 27.10.2019 instead opted to go for the compounding Scheme in the name of SVLDRS-2019 launched by the Central Government for the payment of the outstanding service tax getting a huge tax relief. Section WRIT TAX No. - 1233 of 2022

The entire emphasis on part of petitioner is on the fact that her husband played mischief by portraying her as the proprietor of M/s. Creative Media not only before the taxing authorities but also before the Bank, and thus, any recovery to be made by the Department should be made from Ashok Jha, her husband.

This Court finds that it is a dispute inter se between the petitioner and her husband as to the real ownership of M/s. Creative Media and the liability of payment of service tax. From the documents which have been placed before the Court, it is clear that petitioner herself had got registered with the Tax Department in the year 2013 as the proprietor of M/s. Creative Media. In her tax return for the Assessment Year 2014-15, the business income has been shown from Creative Media. Moreover, she has opted for SVLDRS-2019 Scheme and had deposited the concessional tax amount getting a huge relief for the balance amount. Reliance placed by her on the collateral proceedings especially to the matrimonial dispute and the observation made therein by the Courts would not entitle her for the refund of the amount deposited by her under SVLDRS-2019 Scheme for the outstanding liability of service tax.

In case, petitioner wants refund of the amount deposited by her as service tax, she can initiate appropriate legal proceedings against her husband, Ashok Jha for the recovery of the amount deposited by her during the compounding scheme. The Service Tax Department is only concerned with service tax which is due to be paid by the firm, Creative Media for the business done during the relevant period. In case of any dispute as to the proprietorship of the firm, it is the person who claims the dispute should approach the appropriate legal forum for redressal of her grievance against the person whom she claims to be the real person WRIT TAX No. - 1233 of 2022

Considering the facts and circumstances of the case, I find that no case for interference is made out exercising extraordinary juri iction under Article 226 of Constitution.

Writ petition fails and is hereby dismissed. Order Date :- 14.02.2023 V.S.Singh WRIT TAX No. - 1233 of 2022 VIDYA SAGAR SINGH High Court of Judicature at Allahabad