# Beenu Gupta v. Union of India & Ors

- **Citation:** (2021) 1 ILRA 720
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2020-12-18
- **Case number:** Writ Tax No. 705 of 2020
- **Bench:** Surya Prakash Kesarwani, Dr. Yogendra Kumar Srivastava
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/beenu-gupta-v-union-of-india-ors-46123
- **Pages:** 5

## Headnote

(A) Civil Law - Sabka Vishwas (Legacy
Dispute
Resolution)
Scheme,
2019
-
clause (e) of Section 123 read with clause
(c) of Section 121

The petitioner has filed return under the service
tax prior to 30th June, 2019 and deposited the
amount of duty along with the returns which
was filed belatedly. Clause (e) of Section 123
provides that where an amount in arrears
relating to the declarant is due, the amount in
arrears shall be the tax dues. The words
"amount in arrears" defined in sub- clause (iii)
of clause (c) of Section 121 provides that the
amount of duty which is recoverable as arrears
of duty under the indirect tax enactment on
account of the declarant having filed a return
under the indirect tax enactment on before 30th
day of June, 2019, wherein in the present case
the petitioner has admitted a tax liability but not
paid it. Therefore, clause (e) of Section 123
read with clause (c) of Section 121 of the
SVLDR Scheme is not applicable to the facts of
the present case. (Para 12, 13)

Writ Petition Rejected. (E-8)

## Text

720 INDIAN LAW REPORTS ALLAHABAD SERIES

"33. The principle of law laid down by
the Supreme Court in the cases of
Ghanshyamdas
v.
Regional
Assistant
Commissioner,
Sales
Tax,
Nagpur
MANU/SC/0216/1963 and Anandji Haridas
&
Co.
Private
Ltd.
v.
S.P.
Kushare MANU/SC/0298/1967
applies
equally to assessments under the U.P. Sales
Tax Act and assessment proceedings in
cases where no returns are filed by a
dealer can be made both under Section
7(3) and Section 21(1). Which of the two
sections will apply to a particular case will,
however, depend on the circumstances of
each case. The non-furnishing of returns by
a dealer, and the consequent failure to pay
the tax due, vest in the assessing authority
the power to make a best judgment
assessment
both
under Section
7(3) and Section 21(1) of the Act. If the
circumstances are such as to attract the
provisions of Section 21(1), the assessment
will be made under that provision,
otherwise under Section 7(3). It is not
incumbent on the assessing authority to
make the assessment first under Section
7(3) and
then
only
to
proceed
under Section 21 for bringing to tax the
turnover not assessed under Section 7(3).
The
powers
contemplated
by Section
7(3) and Section 21 are independent of
each other and can be resorted to
independently according to the material
available to the assessing authority."

14. The Full Bench judgment in the
case of Jag Mohan Nath (supra) has also been
followed by a Division Bench of this court in
Commissioner, Sales Tax U.P. vs. Bhuj
Singh Mohan Singh, Bulandshahar (S.T.R.
No.214 of 1971, decided on 04.09.1974)
1974 Vol.VI Tax Law Diary 134.

15. Perusal of sub-section (7) of Section
29 of the Act, 2008 leaves no manner of
doubt that it empowers the Commissioner to
grant authorisation and also empowers the
Assessing Authority to make assessment or
reassessment within a period of eight years
after expiry of assessment year to which such
assessment or reassessment relates. Subsection (1) of Section 29 empowers the
Assessing Authority to make assessment or
reassessment where he has reason to believe
that whole or any part of the turnover of a
dealer, for any assessment year or part
thereof, has escaped assessment to tax or has
been under assessed or has been assessed to
tax at a rate lower than that at which it is
assessable under this Act, or any deductions
or exemptions have been wrongly allowed in
respect thereof. Thus, where whole of the
turnover has escaped assessment on
account of not passing an assessment
order, the provisions of Section 29(1) of the
Act, 2008 can be invoked by the Assessing
Authority and the authorisation under
sub-section (7) can be granted by the
competent authority. It is not incumbent
upon the Assessing Authority to make the
assessment first and then only to proceed
under Section 29(1) for bringing to tax the
turnover not assessed.

16. For all the reasons afore-stated,
we find that the writ petition is without
substance. Consequently, it is hereby
dismissed. However, there shall be no
order as to costs.
----------
(2021)01ILR A720
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 18.12.2020

BEFORE

THE HON'BLE SURYA PRAKASH
KESARWANI, J.
THE HON'BLE DR. YOGENDRA KUMAR
SRIVASTAVA, J.
1 All. Beenu Gupta Vs. Union of India & Ors.
721
Writ Tax No. 705 of 2020

Beenu Gupta ...Petitioner
Versus
Union of India & Ors. ...Respondents

Counsel for the Petitioner:
Sri
Nishant
Mishra,
Sri
Vipin
Kumar
Kushwaha

Counsel for the Respondents:
A.S.G.I., Sri Ramesh Chandra Shukla

(A) Civil Law - Sabka Vishwas (Legacy
Dispute
Resolution)
Scheme,
2019
-
clause (e) of Section 123 read with clause
(c) of Section 121

The petitioner has filed return under the service
tax prior to 30th June, 2019 and deposited the
amount of duty along with the returns which
was filed belatedly. Clause (e) of Section 123
provides that where an amount in arrears
relating to the declarant is due, the amount in
arrears shall be the tax dues. The words
"amount in arrears" defined in sub- clause (iii)
of clause (c) of Section 121 provides that the
amount of duty which is recoverable as arrears
of duty under the indirect tax enactment on
account of the declarant having filed a return
under the indirect tax enactment on before 30th
day of June, 2019, wherein in the present case
the petitioner has admitted a tax liability but not
paid it. Therefore, clause (e) of Section 123
read with clause (c) of Section 121 of the
SVLDR Scheme is not applicable to the facts of
the present case. (Para 12, 13)

Writ Petition Rejected. (E-8)

(Delivered by Hon'ble Surya Prakash
Kesarwani, J. & Hon'ble Dr. Yogendra
Kumar Srivastava, J.)

1. Heard learned counsel for the
petitioner and learned Standing Counsel for
the State respondents.

2. This writ petition has been filed
praying for the following reliefs :-

(A) Issue a writ, order or direction in
the nature of certiorari quashing the illegal
rejection of declarations dated 15.1.2020
and 25.12.2019 by respondent no. 3
designated committee, as disclosed in
remarks column in Form SVLDRS-1 dated
15.1.2020 and 25.12.2019 (Annexure-4 and
6) submitted electronically by petitioner.

(B) Issue a writ, order or direction in
the
nature
of
mandamus
directing
respondent no. 3 to process and accept the
declarations dated 15.1.2020 submitted
electronically by petitioner under the
provisions of Sabka Vishwas (Legacy
Dispute Resolution) Scheme, 2019.

(c) Issue any other writ, order or
direction, which this Hon'ble Court may
deem fit in the facts and circumstances of
the case.

(D) Award costs of the petition to the
petitioner.

3. Learned counsel for the petitioner
submits that the petitioner has deposited the
amount along with returns belatedly and
therefore arose some interest liability which
the petitioner could not deposit, and
therefore, the petitioner has filed a
declaration under the Sabka Vishwas
(Legacy Dispute Resolution) Scheme, 2019
(hereinafter
referred
to
as
'SVLDR
Scheme') but the declaration has been
wrongly rejected by the impugned orders.

4. We have perused the impugned
orders and we find that the designated
authority has rejected declaration on the
ground that "as per report of the
division vide letter dated 13.01.2020, no
duty amount has been declared in return
as payable but not paid. Hence not
covered under the category of arrears."

5. Clause (c) of Section 121 defines
the words "amount in arrears". Clause (d)
722 INDIAN LAW REPORTS ALLAHABAD SERIES
defines the words "amount of duty". Both
the clauses (c) and (d) of Section 121 of
Finance (No. 2) Act, 2019 are reproduced
below :-

(c) "amount in arrears" means the
amount of duty which is recoverable as
arrears of duty under the indirect tax
enactment, on account of--

(i) no appeal having been filed by the
declarant against an order or an order in
appeal before expiry of the period of time
for filing appeal; or

(ii) an order in appeal relating to the
declarant attaining finality; or

(iii) the declarant having filed a return
under the indirect tax enactment on or
before the 30th day of June, 2019, wherein
he has admitted a tax liability but not paid
it;

(d) "amount of duty" means the
amount of central excise duty, the service
tax and the cess payable under the indirect
tax enactment.

6. Section 123 of the SVLDR Scheme
defines the words 'tax dues" for the
purposes of the Scheme.

7. Learned counsel for the petitioner
has admitted before us that the case of the
petitioner does not fall under clause (a) or
(b) of Section 123 of the SVLDR Scheme.

8. Learned counsel for the petitioner
has placed reliance on clauses (c), (d), and
(e) of Section 123, which are reproduced
below :-

(c)where an enquiry or investigation
or audit is pending against the declarant,
the amount of duty payable under any of
the indirect tax enactment which has been
quantified on or before the 30th day of
June, 2019;

(d) where the amount has been
voluntarily disclosed by the declarant,
then, the total amount of duty stated in
the declaration;

(e) where an amount in arrears
relating to the declarant is due, the
amount in arrears.

9. The definition of the words "tax
dues" as provided in Section 123 of the
SVLDR Scheme shows that it is not
expansive in nature inasmuch as it starts
with the word "means".

10. Clause-C of Section 123 relates
to
matters
where
any
enquiry
or
investigation or audit is pending against
the declarant, the "amount of duty"
payable under any of the indirect tax
enactment which has been quantified on
or before 30th June, 2019. This clause is
not applicable in the case of the petitioner
inasmuch as it is not the case of the
petitioner
that
any
enquiry
or
investigation or audit is pending against
him.

11. Clause (d) of Section 123
provides that where the amount has been
voluntarily disclosed by the declarant,
then the total amount of duty as stated in
the declaration shall be the tax dues. The
words "amount of duty" has been defined
in clause (d) of Section 121 which means
the amount of central excise duty, the
service tax and the cess payable under the
indirect tax enactment. The petitioner has
deposited the amount of duty along with
his regular returns under the service tax
law but it was filed belatedly. Thus no
amount of duty was payable under the
service tax law, therefore the provisions
of clause (d) of Section 123 has no
application on the facts of the present
case.
1 All. Beenu Gupta Vs. Union of India & Ors.
723

12. Clause (e) of Section 123
provides that where an amount in arrears
relating to the declarant is due, the amount
in arrears shall be the tax dues. The words
"amount in arrears" has been defined in
clause (c) of Section 121. Sub-clause (iii)
of clause (c) of Section 121 provides that
the "amount in arrears" means the amount
of duty which is recoverable as arrears of
duty under the indirect tax enactment on
account of the declarant having filed a
return under the indirect tax enactment on
or before the 30th day of June, 2019,
wherein he has admitted a tax liability but
not paid it.

13. The admitted facts of the present
case are that the petitioner has filed return
under the service tax law prior to 30th June,
2019 and deposited the amount of duty
along with the returns which was filed
belatedly. Therefore, clause (e) of Section
123 read with clause (c) of Section 121 of
the SVLDR Scheme is not applicable on
the facts of the present case. The circular
relied by learned counsel for the petitioner
has no application to the facts of the
present case inasmuch as the circulars
dated 25th September, 2019 and 29th
October, 2019 relied by learned counsel for
the petitioner is referable to sub-clause (iii)
of clause (c) of Section 121 of the SVLDR
Scheme.

14. Provisions of Chapter V of the
Finance (No.2) Act, 2019, whereby "Sabka
Vishwas (Legacy Dispute Resolution)
Scheme, 2019" has been enacted; is an
offer by the Government to settle tax
arrears locked in litigation at a substantial
discount. Section 124 Finance (No.2) Act
2019 provides the slabs of tax arrears and
the discount slabs in percentage for
payment by an applicant/declarant to settle
the dispute. Section 125 provides that all
persons shall be eligible to make a
declaration under the Scheme except those
mentioned in Clauses (a) to (h). Section
126 empowers the designated Committee to
verify the correctness of the declaration
made by the declarant under Section 125 in
the manner as may be prescribed. Section
127 of the Act empowers the designated
Committee to issue statement indicating the
amount payable by the declarant and in the
event the amount estimated by the
designated Committee exceeds the amount
declared
by
the
declarant
then
the
designated Committee shall afford an
opportunity of hearing to the declarant and
thereafter issue a statement in electronic
form indicating the amount payable by the
declarant. Thereafter, the declarant shall
pay the amount through internet banking
and on payment the designated committee
shall issue a discharge certificate in
electronic form within 30 days of the
payment and production of proof. SubSection 6 and Sub-Section 7 of Section 127
provides
for
withdrawal
or
deemed
withdrawal of Appeal, Revision, Reference
or Writs relating to the matter in question.
Section 129 provides for certain immunities
to the declarant. Section 130 prohibits
payment through input tax credit account,
refunds and to take input tax credit of the
amount deposited under the Scheme.
Section 131 provides for removal of doubts
and Section 134 provides for removal of
difficulties. Section 132 empowers the
Central Government to make Rules by
notification to carry out the provisions of
the Scheme. Section 133 empowers the
Central Board of Indirect Taxes to issue
orders,
instructions
etc.
Section
135
provides for protection to the Officers.

15. Thus, perusal of the provisions of
the Scheme briefly noted above, shows that
the Scheme is a complete Code in itself. In
724 INDIAN LAW REPORTS ALLAHABAD SERIES
substance, it is a scheme for recovery of
duty/indirect tax to unlock the frozen assets
and to recover the tax arrears at a
discounted amount. Thus, "Sabka Vishwas
Scheme", although a beneficial scheme for
a declarant, is statutory in nature, which has
been enacted with the object and purpose to
minimise the litigation and to realise the
arrears of tax by way of settlement at
discounted amount in an expeditious
manner. In other words the scheme is a step
towards the settlement of outstanding
disputed tax liability.

16. For all the reasons aforestated we
do not find any merit in this writ petition.

17. Consequently, the writ petition
fails and is hereby dismissed.
----------
(2021)01ILR A724
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 08.01.2021

BEFORE

THE HON'BLE ATTAU RAHMAN MASOODI, J.

Service Single No. 262 of 2021

Ashish Tyagi & Ors. ...Petitioners
Versus
State of U.P. & Anr. ...Respondents

Counsel for the Petitioners:
Vineet Kumar Pandey, Pradeep Kumar
Tiwari

Counsel for the Respondents:
C.S.C., Ashok Shukla

A. Drugs and Cosmetics Act, 1940 -
Sections 21 and 33 - Drugs and Cosmetics
Rules, 1945 - Rule 49 - Service law -
Recruitment - Essential qualification -
Changing - Repugnancy with the Central
law - Power of the State Government -
Central Government within its concurrent
domain of legislation has exhausted the
legislative
power
on
the
aspect
of
prescribing
the
essential
eligibility
qualifications for selection - There is no
scope open to the State Government for
fixing a different or additional recruitment
criteria
of
Drug
Inspectors
-
Held,
amended Rule 8 of the U.P. Food and Drug
Administration
Department
Gazetted
Officers'
(Drugs)
Service
(Third
Amendment) Rules, 2015 lacks authority
and being inconsistent with Rule-49 of the
Drugs and Cosmetics Rules, 1945, the
same is liable to be set aside. (Para 15 and
17)
B. Constitution of India - Article 254 -
Central legislation and State legislation -
Repugnancy - Legislative competence -
Held, Once the area of primary legislation
is exhausted by the Central Government
and
rules
are
made,
the
legislative
competence of the State or its rule making
authority stands eclipsed to the extent of
inconsistency - A contrary attempt made
by the State would be clearly repugnant to
the very objects of the law made by the
Central Government. (Para 15)
Writ Petition allowed. (E-1)
Cases relied on :-
1. Civil Misc. Writ Petition No. 46079 of 2010,
Kuldeep Singh & ors. Vs St. of U.P. & anr.
decided on 10.04.2014
2. Writ Petition(c) 2475 of 2019, U.P.S.C. Vs
Nidhi Pandey & anr. decided on 18.02.2020
3. Jaspal Reddy Vs St. of A.P., (1994) 4 SCC
391
(Delivered by Hon'ble Attau Rahman Masoodi, J.)

"Heard
learned
counsel
for
the
petitioners.

It
is
strange
to
note
that
the
advertisement stated to have been issued on
10.08.2016 is in the teeth of full bench
judgment rendered by this Court in a bunch
of writ petitions leading case being