Case Law Details
Sagoon Security Services Pvt. Ltd. Vs Union of India (Bombay High Court)
Bombay HC Remands Sabka Vishwas Matter Back to Designated Committee as SVLDRS-3 Not Served on Petitioner
Bombay High court Remands sabka vishwas matter back to Designated committee for reconsideration as SVLDRS-3 not served to petitioner due to technical glitch of SVLDRS portal because of which petitioner was locked out of the portal and after login-in petitioner SVLDRS data was missing.
Summary of Judgment
Sabka Vishwas (Legacy Dispute Resolution) Scheme, 2019 – Petitioner filed SVLDRS-1-subsequetly modified as entered wrong figures- unable to access account as account locked- petitioner make representation due to covid unable to make proper representation- Designated Committee issued mail informing SVLDRS-3 payable amount but no copy of SVLDRS-3 served on petitioner, and states petitioner failed to make payment– However, SVLDRS-3 was not received by petitioner despite of it being issued in March, 2020 – Further, petitioner had logged out/was unable to access departmental portal; even no email/sms/intimation was received by him – also entire data of petitioner missing from website– In this circumstances, The respondents are directed to consider the application of thepetitioner dated 26 December 2019 within the period of 4 weeks from the date of uploading of the present order and inform the petitioner about the amount payable under the Scheme – On receipt of the communication from the petitioner about the payment having been made, the respondents to issue discharge certificate under Section 127 of the SVLDRS Scheme.
Petitioner’s Stand:
Advocate Mr. Shreyas Shrivastava along with Mr. Saurabh Mashelkar for Petitioner
Matter drafted & filed by Advocate Saurabh Mashelkar
1. Petitioner was logged out of the system no communication made to petitioner regarding SVLDRS-3, that not even any email / sms /intimation was not received by petitioner.
2. Petitioner cannot be called upon to prove negative to show that he has not received the said form intimating the amount payable and the onus is on the respondents to show that they have intimated the petitioner by e-mail or otherwise
3. Petitioner made various attempts to login like Helpdesk , personal visits and mails
4. Respondent only communicated mail regarding the svldrs-3 amount payment due but no details provided
5. That even today on the portal when the petitioner logs in, the screen shows no data found in status records that SVLDRS Form-3 has been issued.
6. Respondent has acted ultra-virus to the established tests of Finance (no.2) Act, 2019, Scheme, rules framed thereunder and user manual issued and circulated by the Union of india.
7. Serious Breach of natural justice not providing personal hearing and order copy.
Respondent’s Stand:
Mr. Karan Adik a/w Ms. Sangeeta Yadav for the respondents.
1. Scheme was regulated online and therefore it should be deemed that the petitioner has received SVLDRS Form-3.
2. No provision to issue physical Form-3, since the whole scheme is fully automatic and regulated through online mode.
3. No representation made before time.
Court’s Analysis:
1. It is not disputed that the scheme is fully regulated by online mode, However, the respondent has not produced any evidence, positive or otherwise, to show that SVLDRS Form-3 was intimated to the petitioner online, either by E-mail or otherwise.
2. If the scheme is regulated online, it cannot be accepted that there would be no proof that the respondents issued SVLDRS Form-3 and that the petitioner received it.
3. Therefore, in our view, the respondents were not justified in not considering the petitioner’s application filed on 26 December 2019.
4. Due to Covid-19 pandemic it was not possible for petitioner to make proper representation still after restriction were relaxed petitioner made representation.
5. Respondent unable to show proof of SVLDRS-3.
6. hence matter remanded by to designated committee constituted under Sabka vishwas scheme.
FULL TEXT OF THE JUDGMENT/ORDER OF BOMBAY HIGH COURT
1. The rule is made returnable immediately with consent.
2. By this petition under Article 226 of the Constitution of India, following substantive relief is sought which reads as under:
(a) That this Hon’ble Court be pleased to issue the writ of Certiorari or any other appropriate writ, order or direction in nature of certiorari calling for the record and proceedings and quash and set aside Impugned communication being F.No. CGST/ME/svldrs/App-1217/Sagoon/2019/1006 dated 05.11.2020 and impugned SVLDRS-3 issued by Respondent No.4 bearing No.L120220SV302791 dated 12.02.2020 generated on 4th March 2020 thereby directing Respondent No.4 their servants and agents to treat the declaration/application filed by petitioner has valid declaration.
(b) That this Hon’ble Court be pleased to issue a Writ of Mandamus or any other appropriate writs, orders or directions, ordering and directing the Respondents to forthwith accept the declaration in Form SVLDRS 1 under ARN No.LD2612190004761 dated 26/12/2019 filed by the petitioner and further directing respondents their servants and agents to issue discharge certificate under Section 127 of the Scheme.
Brief facts :-
3. The petitioner is engaged in the business of providing Outdoor Catering Services and is registered under Chapter V of the Finance Act, 1994 (Services Tax). For the period October 2016-September 2017, the petitioner filed its service tax returns, but due to financial crisis could not discharge its service tax liability. However, during the period 2017- 2018, the petitioner partly discharged its liability for the said period of 2016-2017. Meanwhile, respondent No.1 introduced the ‘Sabka Vishwas (Legacy Dispute Resolution) Scheme, 2019’ (SVLDRS Scheme) to reduce legal litigation by giving relief to the declarant to the extent of the percentage of the tax due specified in the scheme if the lis is withdrawn by the assesses.
4. Pursuant to the above SVLDRS scheme, on 26 December 2019, the petitioner made an application in SVLDRS form-1 for availing the benefit of the Scheme for the period October 2016 – September 2017. The said application was acknowledged by the respondents vide reference No. LD2612190004761. Subsequently on 16 January 2020, the petitioner addressed letter seeking rectification of SVLDRS Form-1.
5. After that, on account of Covid there was no exchange of correspondences between the parties. On 5 November 2020, respondents informed the petitioner that their request for rectification could not be considered since the petitioner has not paid the amount intimated in SVLDRS Form-3 dated 12 February The petitioner replied to the said communication and denied having received SVLDRS Form-3 intimating about the payment to be made.
6. After that, the petitioner made various representations to the respondents and also raised a grievance on the portal of the respondents. However, having not received any success, the petitioner has now approached this Court by filing the present writ
Submissions of the Petitioner:-
7. Shrivastava, learned counsel for the petitioner submits that since the petitioner did not receive SVLDRS Form-3 from the respondents, they did not make any payment in the scheme and therefore, the respondents are not justified in not considering the application of the petitioner. He further submitted that even today on the portal when the petitioner logs in, the screen shows no data found but the application status records that SVLDRS Form-3 has been issued. He further submits that the petitioner cannot be called upon to prove negative to show that he has not received the said form intimating the amount payable and the onus is on the respondents to show that they have intimated the petitioner by e-mail or otherwise, which they have failed to do so.
Submissions of the Respondents :-
8. Adik, learned counsel for the respondents submits that the scheme was regulated online and therefore it should be deemed that the petitioner has received SVLDRS Form-3. He relies upon the affidavit-in- reply filed and reiterates that the SVLDRS Form-3 was issued on 12 February 2020. He further submits that there is no provision to issue physical Form-3, since the whole scheme is fully automatic and regulated through online mode.
Analysis & Conclusions:-
9. Having heard learned counsel for the petitioner and the respondents, it is not disputed that the scheme is fully regulated by online The respondents have also not disputed receipt of SVLDRS Form-1. However, the respondent has not produced any evidence, positive or otherwise, to show that SVLDRS Form-3 was intimated to the petitioner online, either by E-mail or otherwise.
10. If the scheme is regulated online, it cannot be accepted that there would be no proof that the respondents issued SVLDRS Form-3 and that the petitioner received it. The petitioner is justified in contending that they could not be called upon to prove Still, on the contrary, the onus lies on the respondents to show that SVLDRS Form-3 was intimated to the petitioner.
11. Therefore, in our view, the respondents were not justified in not considering the petitioner’s application filed on 26 December 2019. After February 2020, on account of the pandemic, the petitioner could not approach the As soon as COVID-19 restrictions were relaxed, they followed up with the respondents sparingly on the issue. Even today, respondents have not produced SVLDRS Form-3.
12. The petitioner is justified in relying upon the decision of this court in the case of ‘Your Fitness Club Pvt. Ltd. Vs. Union of India’1 which involved similar if not identical facts. This Court directed the petitioner’s application therein to be considered by the respondents for the purpose of SVLDRS Scheme. In our view, the said decision squarely applies to the facts of the present petition, and therefore, the respondents’ non-consideration of the petitioner’s application is not justified.
13. In view of the above, we pass the following order:
(a) The respondents are directed to consider the application of the petitioner dated 26 December 2019 within the period of 4 weeks from the date of uploading of the present order and inform the petitioner about the amount payable under the Scheme.
(b) The petitioner to make the payment of the amount determined by the respondents under clause (a) above within a period of 4 weeks from the date of communication and inform the respondents about the payment having been made.
(c) On receipt of the communication from the petitioner about the payment having been made, the respondents to issue discharge certificate under Section 127 of the SVLDRS Scheme.
(d) This petition is allowed in the above terms. No order as to the costs.
The Rule is made absolute in the above terms. All concerned must act on an authenticated copy of this order.
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