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2024 DIGILAW 1276 (GUJ)

NRI Crop Science v. State Tax Officer

2024-06-14

BHARGAV D.KARIA, NIRAL R.MEHTA

body2024
JUDGMENT : (PER : HONOURABLE MR. JUSTICE BHARGAV D. KARIA) 1. Heard learned advocate Mr. D.K.Trivedi for the petitioner and learned Assistant Government Pleader Mr. Raj Tanna and Ms. Shrunjal Shah for the respondent-State. 2. By these petitions under Article 226 of the Constitution of India, the petitioner has prayed for the following reliefs: “A. Your Lordships may be pleased to admit this petition; B. Your Lordships may be pleased to allow this petition; C. Your Lordships may be pleased to issue writ of mandamus or any other appropriate writ quashing and setting aside letter dated 11/3/2022 (VERA- DISPOSAL LETTER NO. 77722VSDISP018160995)being issued by Respondent no.01 herein, whereby application of the petitioner bearing no. 99KS0035845 under Vera Samadhan Yojna 2019 was disposed; D. Your Lordships may be pleased to issue writ of mandamus or any other appropriate writ directing the Respondent No, 01 to immediately restore Application No. 99KS0035845 (date of acknowledgement - 25/01/2020) being filed by the petitioner under Vera Samadhan Yojana, 2019 and directing the Respondent No. 01 to issue Remission Order/Certificate in regard to the said application No. 99KS0035845 under the said Yojana to the effect that the petitioner herein would not be required to deposit/pay any amount towards tax/interest/penalty in accordance with said Yojana as the entire amount of tax along with interest is already paid by the petitioner; E. Pending issuance of notice, admission and final hearing of this petition, Your Lordships may be pleased to stay the operations and implementations of Assessment Order dtd. 09/11/2017 (Annexure “B’ hereinabove) and notice dtd. 10/11/2017 (Annexure ‘C’ hereinabove) being issued by Respondent No. 03; F. Your Lordships may be pleased to grant such other and further relief that may be deemed fit and proper in the interest of justice in favour of the petitioner. 3. Rule returnable forthwith. Learned Assistant Government Pleader Mr. Raj Tanna waives service of notice of rule for the respondents. 4. Having regard to the controversy in the narrow compass, with the consent of the learned advocates for the parties, the matters were taken up for hearing. 5. For sake of convenience, Special Civil Application No. 26064 of 2022 is treated as the lead matter. 6. Brief facts of the case are as under: 6.1 The petitioner is a proprietorship firm. Notice dtd. 5. For sake of convenience, Special Civil Application No. 26064 of 2022 is treated as the lead matter. 6. Brief facts of the case are as under: 6.1 The petitioner is a proprietorship firm. Notice dtd. 03/07/2017 for issue based assessment u/s. 34(8A) of the Gujarat Value Added Tax Act, 2003, was issued to the petitioner in regard to the period from 01/04/2013 to 31/03/2014 by the Respondent No. 03. 6.2 Assessment Order dtd. 09/11/2017 in Form 304 was issued by Respondent No.03. A demand of tax Rs.5,77,331/+ Interest Rs.3,37,738/+Penalty Rs.8,65,996/= Total Rs.17,81,065/was assessed. It is also mentioned in the said order that the petitioner had paid a total amount of Rs.9,15,069/-out of the aforesaid amount. The balance amount of Rs.8,65,996/is payable for which notice in Form 305 would be issued. 6.3 Respondent No. 03 had issued Namuno 305 dtd. 10/11/2017 ie. Notice for recovery of assessment dues whereby the petitioner was asked to pay Rs.8,65,996/-. 6.4 Being aggrieved and dissatisfied by the assessment order, the petitioner herein had preferred an appeal there against before the Respondent No. 02. From the said office, the petitioner had received an acknowledgement slip dtd. 24/01/2018 evidencing that the appeal was filed. As five different appeals in regard to assessment years 2012-13, 2013-14, 2014-15, 2015-16 and 2016-17 were filed together, the said acknowledge slip contains details of all the five appeals. 6.5 On 06/12/2019, Vera Samadhan Yojana, 2019 was introduced consequent upon introduction of Goods & Services Tax. Said Yojana was applicable to Gujarat Value Added Tax Act, 1969 along with various other statutes, All those assessees whose appeals were pending before the appellate authority were eligible to avail benefits under the said Yojana. As per the said Yojana, if the applicant pay the principal amount of tax, the applicant would get a waiver of interest and penalty. The procedure for availing the benefit was also incorporated in the said Yojana. There was a condition that applicant under the Yojana must withdraw the appeal if he wants to avail the benefit. 6.6 The petitioner had applied for benefits under the said Yojana. The petitioner was provided with an acknowledgement receipt dtd. 25/01/2020 by the Assistant Commissioner of Commercial Tax/Commercial Tax Officer, Ghatak - 14 (ABD). It may be observed that application is filed in regard to five different appeals which pertains to period from 01/04/2012 - 31/03/2013 to 01/04/2016 - 31/03/2017 respectively. The petitioner was provided with an acknowledgement receipt dtd. 25/01/2020 by the Assistant Commissioner of Commercial Tax/Commercial Tax Officer, Ghatak - 14 (ABD). It may be observed that application is filed in regard to five different appeals which pertains to period from 01/04/2012 - 31/03/2013 to 01/04/2016 - 31/03/2017 respectively. Details of the respective Assessment Orders confirming demand against the petitioner are mentioned. Details of all the appeals filed are mentioned. It is also mentioned whether appeal would be withdrawn fully or partially. It is mentioned in the said column against all the applications that appeal would be withdrawn fully. 6.7 The petitioner had submitted aforesaid acknowledgement receipt dtd. 25/01/2020 before the Respondent No. 04. In response they have received another acknowledgement receipt dtd. 27/01/2020. 6.8 As the Yojana required that the pending appeals may be withdrawn, in accordance with the Yojana, an application praying for withdrawal of pending appeal was filed on 04/02/2020 before Respondent No. 02. 6.9 In response to the application of the petitioner, Respondent No. 01 had issued intimation letter under Vera Samadhan Yojana - 2019 which provides details of assessment year, tax as per application, interest as per application, penalty as per application, total amount as per application, demand as per original order (assessment order). In addition to these details the said letter also provides details of first instalment payable under the Vera Samadhan Yojana, 2019, remaining eleven instalment payable under the said Yojana & total amount payable under the said Yojana. It is important to note that according to the said intimation letter itself absolutely no amount was payable under the Yojana having regard to the fact that entire tax (along with interest) was already paid and as per the said Yojana, interest & penalty were required to be waived. 6.10 The petitioner received phone call from Respondent No. 01 demanding payment of unpaid penalty amount. Although petitioner had already deposited the tax along with interest, which Is also evident from the assessment order itself, and although in response to thelr application under Yojana, the petitioner received aforesaid intimation letter clearly mentioning that no amount at all is payable, the said Respondent No. 01 had not agreed to it. Therefore the petitioner had written a letter dtd. 15/07/2020 requesting not to demand any money. Said letter was addreseed to Respondent No. 01. It was submitted before the office of Respondent No. 04 on 16/07/2020. Therefore the petitioner had written a letter dtd. 15/07/2020 requesting not to demand any money. Said letter was addreseed to Respondent No. 01. It was submitted before the office of Respondent No. 04 on 16/07/2020. 6.11 Since no remission order was passed in accordance with the Yojana, the petitioner herein had submitted a detailed letter before the Respondent No. 01 as well as Respondent No. 04. The reason for submitting very same letter before said Respondent No. 04 was that he is the superior officer of Respondent No. 01. Both these letters were submitted before the said respective authorities on 31/08/2021. 6.12 The petitioner was in receipt of letter dtd. 11/03/2022 titled as “Disposal of application under Vera Samadhan Yojana - 2019’. It was mentioned therein that as the petitioner had failed to make full payment as mentioned in the intimation letter, the application for availing benefit under the said Yojana stands disposed. Said letter was issued, despite the fact that as per the intimation letter, the amount payable by the petitioner under the Yojana was Rs. ‘0’. 6.13 On 14/07/2022, without any rhyme and reason, the Respondent No. 01 had attached the bank account of the petitioner. No intimation regarding the said bank attachment was provided to the petitioner. The petitioner had issued payment cheques to their suppliers in a normal course of business. Those cheques were dishonoured by the bank. Upon inquiring with the bank, it was learnt that the respondents herein have asked the bank to freeze the bank account of the petitioner. It was also learnt that not only the bank account of petitioner firm was freezed but the personal saving account of the proprietor of the petitioner firm was also freezed. No bank attachment notices were served upon the petitioner, Upon Inquiry, the petitioner was informed that since they had not paid the required amount under the said Yojana within stipulated time, their application stands rejected. Upon requesting and vehemently explaining the situation to all the three respondents, the petitioner was verbally informed that the respondents cannot help the petitioner. 6.14 Having left with no other choice, the petitioner herein had submitted application before the Respondent No. 02 for restoring their appeal which was withdrawn in order to take benefit under the Yojana. Said application was submitted on 18/07/2022 before the Respondent No.02. 6.14 Having left with no other choice, the petitioner herein had submitted application before the Respondent No. 02 for restoring their appeal which was withdrawn in order to take benefit under the Yojana. Said application was submitted on 18/07/2022 before the Respondent No.02. Respondent No. 02 was pleased to grant stay against recovery of the penalty amount vide his order dtd. 18/07/2022. The stay is granted uptill 31/12/2022 only. 6.15 Therefore immediately on 19/07/2022, the petitioner submitted letter before Respondent No. 01 requesting him to release the attachment of bank account in light of the aforesaid stay order passed by the Respondent No. 02. 6.16 In response to the aforesaid, the Respondent No. 02 had passed two separate orders both dtd. 20/07/2022 releasing bank attachment in regard to Bank of Baroda and Axis Bank Ltd. Respectively. 6.17 The petitioner had filed application for review of decision/letter/order dtd. 11/03/2022 whereby the application under Vera Samadhan Yojana, 2019 was disposed of under the pretext that the petitioner herein has not made full payment against amount intimated within time limit prescribed under Vera Samadhan Yojana. As said letter/decision/order was passed by Respondent No. 01. said application was also submitted before the said officer. Same application was also filed before the Respondent No. 04. The reason for submitting said review application before Respondent No. 04 in addition to submitting the same before Respondent No. 01 was that Respondent No.04 is a superior officer of Respondent No. 01. Being aggrieved and dissatisfied by the illegal action of the respondent authorities, the petitioner approached this Court by preferring the present petition. 7. Learned advocate Mr. D.K.Trivedi for the petitioner submitted that the petitioner has already deposited the tax and interest prior to passing of the assessment order which is also recorded therein and therefore, the petitioner is entitled to the benefit of Amnesty Scheme which clearly provides that waiver of interest and penalty if amount of tax is paid. 7.1 It was further submitted that the petitioner was not granted any opportunity of hearing before rejection of application under the Amnesty Scheme. 7.2 It was submitted that the amount sought to be demanded in the intimation letter issued by the respondent-Authority is based upon erroneous understanding that the assessment order in respect of which, the amnesty was sought was only with respect to penalty. 7.2 It was submitted that the amount sought to be demanded in the intimation letter issued by the respondent-Authority is based upon erroneous understanding that the assessment order in respect of which, the amnesty was sought was only with respect to penalty. 7.3 It was submitted that the assessment order was relating to tax, interest as well as penalty and not only with respect to penalty and as the petitioner had already paid the tax and interest, the demand was raised qua levy of penalty only and therefore, it cannot be said that the assessment order was not for tax, interest and penalty. 7.4 It was therefore, submitted that the petitioner was not required to pay 20% amount of the outstanding dues as per Clause 4.5 of the Amnesty Scheme. 7.5 Learned advocate Mr. Trivedi, in the alternative, submitted that the Tribunal ought not to have refused to restore the appeals in view of the fact that the application of the Amnesty Scheme was rejected by the respondent-authority. It was therefore submitted that if it is held that the petitioner is not entitled to the benefit of Amnesty Scheme, then the petitioner is required to be permitted to pursue the remedy available under the provisions of the VAT Act by restoration of the second appeal which was withdrawn by the petitioner to avail the benefit of the Amnesty Scheme. 7.6 It was further submitted that the amount the petitioner was made to deposit pursuant to the intimation letter issued under the Amnesty Scheme is also contrary to the Scheme as the petitioner was eligible to the benefit of the Amnesty Scheme without any further requirement of deposit of any amount as what was challenged in appeal was not mere penalty order which would require pre-deposit of penalty. The petitioner is therefore, entitled to the refund of the amount wrongly recovered pursuant to the intimation letter. 7.7 It was also submitted by learned advocate Mr. Trivedi that attachment of the bank account of the petitioner is also liable to be quashed as the petitioner has already filed an application for Amnesty Scheme and without any intimation of disposal of such application, the respondent-authorities could not have made coercive recovery against the petitioner during pendency of the issue with regard to waiver of penalty. 7.8 In support of his submissions, learned advocate Mr. 7.8 In support of his submissions, learned advocate Mr. Trivedi referred and relied upon the following decisions: • Sunflowers Developers vs. State of Gujarat reported in 2019 SCC Online Guj 6611; • Safal Developers v/s. State of Gujarat in Special Civil Application No. 1338 of 2016 decided on 22/27.04.2016; • Sky Industries Ltd vs. State of Gujarat in Special Civil Application No. 246 of 2023 decided on 07.06.2023; • Varmora Granito Pvt. Ltd vs. State of Gujarat in Special Civil Application No. 4650 of 2023 decided on 06.07.2023. 8. On the other hand, learned AGP Mr. Raj Tanna submitted that the petitioner is not entitled to the benefit of Amnesty Scheme without depositing the amount as stated in the intimation letter. 8.1 It was submitted that as per Clause No. 45 of the Amnesty Scheme, where the assessment order pertains to the interest or penalty or both, a total of 20% of the demand value is required to be paid to avail the benefit of the Amnesty Scheme. It was therefore, submitted that the contention raised on behalf of the petitioner that as the petitioner has already paid the tax and interest prior to passing of the assessment order, no further amount is required to be paid by the petitioner is not acceptable because ultimately, the demand raised in the assessment order pertains only to penalty as the petitioner has already paid the tax and interest. 8.2 It was submitted that time limit prescribed under Clause 8 of the Amnesty Scheme provides that the first instalment i.e. 10% of the amount payable shall be paid before 15th March,2020 and the remainder shall be paid in 11 installments which was increased from time and again and the last date of payment in order to claim the benefit under the Scheme was 31.08.2021. It was submitted that however, the petitioner did not pay the amount as per the intimation letter issued under the Amnesty Scheme and therefore, by the impugned letter dated 11.03.2022 the petitioner was intimated that the benefit under the Amnesty Scheme cannot be granted as the petitioner did not make full payment against the outstanding amount intimated by the department. It was submitted that however, the petitioner did not pay the amount as per the intimation letter issued under the Amnesty Scheme and therefore, by the impugned letter dated 11.03.2022 the petitioner was intimated that the benefit under the Amnesty Scheme cannot be granted as the petitioner did not make full payment against the outstanding amount intimated by the department. 8.3 It was therefore submitted that on perusal of the intimation letter placed on record by the petitioner, the petitioner was called upon to make payment as per the Amnesty Scheme which was admittedly not paid by the petitioner and accordingly, the petitioner was denied the benefit of the Amnesty Scheme. 8.4 It was submitted that the time limit as prescribed under Clause 8 of the Amnesty Scheme was extended upto 31.08.2021. However, the petitioner failed to make payment in time and therefore, the petitioner is not entitled to the benefit of the Amnesty Scheme. 8.5 It was submitted that as per the assessment order, a demand was raised qua penalty only and therefore, the petitioner was supposed to pay the amount as stated in the intimation letter as per Clause 4.5 of the Amnesty Scheme. Learned AGP Mr. Tanna therefore submitted that the petitioner having failed to comply with the requisite condition to avail the benefit of the Amnesty Scheme by not depositing 20% of the penalty amount as per the assessment order, the petitioner was rightly denied the benefit of the Amnesty Scheme. 9. Having heard learned advocates for the respective parties and having considered the facts of the case as well as the provisions of the Amnesty Scheme, it is not in dispute that the petitioner is entitled to the benefit of the Amnesty Scheme which was launched vide Resolution dated 11.09.2019 by the Government and subsequently revised by Resolution dated 06.12.2019 for remitting the pending dues. As per the Clause 4.1 of the Scheme, the vendor would be able to claim the remission of interest and penalty upon payment of tax amount. Clause 4.2 deals with enforcement cases where turnover .is increased. Clause 4.3 pertains to enforcement cases other than prescribed in Clause 4.2 for such cases where penalty is imposed under section 34(7) by the VAT Act wherein and in such cases, benefit of Clause 4.1 shall be extended. Clause 4.4. Clause 4.2 deals with enforcement cases where turnover .is increased. Clause 4.3 pertains to enforcement cases other than prescribed in Clause 4.2 for such cases where penalty is imposed under section 34(7) by the VAT Act wherein and in such cases, benefit of Clause 4.1 shall be extended. Clause 4.4. of the Amnesty Scheme deals with voluntary disclosure whereas, Clause 4.5 prescribes for eventualities where assessment order pertains to the interest or penalty or both wherein total of 20% of outstanding demand shall stand payable in order to avail the benefit of Amnesty Scheme. 10. Clause 5 of the Amnesty Scheme pertains to cases where appeal under Central Sales Tax is pending or for such eventualities prescribed in Clause 5.2 whereas Clause 6 provides for cases where the department has preferred appeal. Clause 7 provides for manner and method of making application under the Amnesty Scheme. Clause 8 of the Scheme prescribed the time limit for payment of first instalment i.e. 10% of the amount payable on or before 15.03.2020 and the remainder to be paid in 11 installments. Said time limit was extended from time to time and lastly, it was extended upto 31.08.2021. 11. It is also not in dispute that the petitioner has paid the tax and interest prior to the framing of the assessment and therefore, assessment order under which, the tax and interest and penalty was imposed and ultimately, after giving set off of the payment of tax and interest, the demand was raised qua penalty only. 12. It is also a matter of fact that the petitioner challenged the assessment order wherein tax, interest and penalty is imposed before the First Appellate Authority. Thus, the petitioner was aggrieved by imposition of tax, interest, and penalty and not only penalty. 13. Therefore, it cannot be said that the petitioner has accepted the assessment order qua tax and interest and only was aggrieved by imposition of penalty. 14. The benefit of the Amnesty Scheme is available for waiver of interest and penalty. However, the Scheme also provides that no refund would be issued qua interest or penalty which is already deposited by the applicant. Therefore, the petitioner is not entitled to the refund of interest but so far as the penalty is concerned, the petitioner was entitled for the waiver thereof. However, the Scheme also provides that no refund would be issued qua interest or penalty which is already deposited by the applicant. Therefore, the petitioner is not entitled to the refund of interest but so far as the penalty is concerned, the petitioner was entitled for the waiver thereof. The respondent authorities however invoking the Clause 4.5 by misinterpreting the object of the Scheme to give waiver of interest and if the amount of tax is deposited by the assessee. According to the respondent- authority, only the outstanding amount is to be seen which pertains to the penalty and therefore as per Clause 4.5 of the Amnesty Scheme, the petitioner was directed to deposit 20% of the penalty. The petitioner under the bona fide belief that the petitioner already deposited the entire tax and interest and the order under challenge before the appellate authority was the assessment order comprising of tax interest and penalty and therefore as per Clause 4.5 of the Amnesty Scheme, the petitioner is not liable to deposit any penalty. The petitioner therefore did not deposit amount of penalty as intimated by the respondent-authority. The petitioner however, intimated the respondent-authority that as the petitioner has already paid tax and interest before assessment order was passed, the petitioner is not liable to deposit any amount of the penalty as required by the intimation letter. However, the respondent-authority rejected the application of the petitioner for the benefit of the Amnesty Scheme as the petitioner did not deposit the amount as required by the intimation letter. 15. Approach of the respondent-authority is therefore contrary to the Amnesty Scheme which is considered by this Court in various decisions as under: • In case of Sunflowers Developers (supra) this Court has held as under: “20 In this backdrop, it may be germane to refer to the object behind the above referred amnesty scheme. The preamble of the Amnesty Scheme provides that the Goods and Services Act has been brought into force in the State with effect from 1.7.2017. Prior to the coming into force of this enactment, there were approximately more than 20,000 cases pending at different levels under the Sales Tax Act, Value Added Tax Act, Central Sales Tax Act, Motor Spirit Taxation Act, Entry Tax Act and Sugar Cane Purchase Tax Act. As a result considerable recoveries of the amounts involved in such cases were outstanding. Prior to the coming into force of this enactment, there were approximately more than 20,000 cases pending at different levels under the Sales Tax Act, Value Added Tax Act, Central Sales Tax Act, Motor Spirit Taxation Act, Entry Tax Act and Sugar Cane Purchase Tax Act. As a result considerable recoveries of the amounts involved in such cases were outstanding. Various business associations in the State had made representations for expeditious and effective disposal of such old cases. By this scheme the Government will get the amounts of old pending recoveries, the business segment will get a huge relief and the administrative cost of the Government will be reduced. Considering this submission a proposal had been made for introducing the Amnesty Scheme. Under this scheme, the outstanding recoveries under the above enactments are to be covered. 21. Thus, the object of the amnesty scheme is to bring about expeditious and effective resolution of old disputes and recoveries of old outstanding dues of the Government and reduction of administrative costs. Since such scheme is applicable to all pending cases, the officers acting under the relevant statutes are expected to respect the object of the scheme and to ensure that the assessees get the benefit under the scheme. Therefore, when a bona fide request is made by an assessee to adjourn the hearing of a case with a view to enable him to avail the benefit of the scheme, the concerned officer is duty bound to respect such request. Therefore, when in the present case, where the matter had not been taken up for hearing for a considerable period of time, when the petitioners requested the second respondent to keep the assessment proceedings in abeyance as they wanted to avail the benefit of the amnesty scheme, the respondent ought to have respected such request and afforded the petitioners sufficient time to avail the benefit of the amnesty scheme, however, on the contrary, the second respondent, in undue haste, has proceeded to pass an ex parte high pitched best judgment assessment order under section 34(8) of the GVAT Act.” In case of Safal Developers (supra) this Court has held as under: “10. On behalf of the respondents, it has been contended that in view of paragraph 7 of the Scheme, the petitioners are not entitled to the benefit of the Scheme as the amount of tax and interest has been paid prior to the Scheme having been brought into effect. As noticed earlier, paragraph 7 of the Scheme provides that the dealers shall be entitled to the benefit of the Scheme only after the payment of the taxes payable under the Scheme during the period of the Scheme. In the opinion of this court, the contention that in cases where the tax and interest have been paid prior to the coming into force of the Scheme, the Scheme would not be applicable, does not appear to be a true construction of the provisions of paragraph 7. Paragraph 7 only provides that the dealer, to be entitled to the benefit of the Scheme, shall have to have paid the taxes thereunder during the operation of the Scheme. The same does not in any manner preclude those dealers who have already paid the tax prior to the coming into force of the Scheme. 11. At this juncture, reference may also be made to paragraphs 10 and 13 of the Scheme, which give a clear indication of the intent of the Government while introducing the Scheme. Paragraph 10 of the Scheme provides that the benefit of the Scheme shall also be available to those cases where appeal proceedings are pending. However, the dealer who takes the benefit shall be required to withdraw the appeal to the extent of the transactions shown in paragraph 1(B) or shall be required to revise the appeal accordingly. Paragraph 13 provides that where in connection with transactions under paragraph 1(B), tax, interest and penalty has already been paid, then the dealer availing of the benefit of the Scheme shall under no circumstances be entitled to refund of the amount so paid. On a conjoint reading of paragraph 10 and paragraph 13 of the Scheme, it is evident that the intention is to grant benefit also to those dealers who have paid the tax and interest prior to coming into operation of the Scheme. The only condition is that in case where the tax, interest and penalty has already been paid, the dealer shall not be entitled to refund thereof. The only condition is that in case where the tax, interest and penalty has already been paid, the dealer shall not be entitled to refund thereof. The provisions of paragraph 7 of the Scheme have to be construed in consonance with the provisions of paragraph 10 and 13 thereof, which clearly indicate that all those dealers who have paid the taxes during the period of operation of the Scheme and prior thereto are brought within the ambit thereof. 12. Under the circumstances, the second ground raised by the respondents for denying the benefit of the Amnesty Scheme to the petitioners is also not in consonance with the provisions of the Scheme. The respondents are, therefore, not justified in denying the benefit of the Amnesty Scheme to the petitioners. The above view is fortified by the view taken by the Karnataka High Court in the above referred decisions. 13. Examining the case from another angle, if the interpretation put forth by the respondents were to be accepted, the same would result in a situation where dealers who have paid their taxes prior to the coming into force of the Scheme, would be denied the benefit thereof, whereas those dealers who have not paid the taxes would be granted the benefit of the Scheme, which would be clearly violative of the constitutional provisions as envisaged under Article 14 of the Constitution of India and would amount to putting a premium on non- payment of taxes whereby dealers who have not paid taxes steal a march over those dealers who have paid their taxes in time.” 16. It is also pertinent to note that against the order passed by this Court in case of Safal Developers (supra), the State preferred Special Leave Petition No. 19629 before Hon’ble Supreme Court by the State was also dismissed. Keeping in view the observation made by this Court in case of Safal Developers (supra) and considering the facts of the present case, we are of the opinion that respondents have committed error while rejecting the application under Amnesty Scheme as the petitioner has already paid amount of tax and interest prior to passing of the order of assessment and prior to the announcement of the Scheme. Therefore, reliance placed by the respondent authority on Clause 4.5 of read with Clause 8 of the Scheme would not be applicable as the petitioner is entitled to the waiver of interest and penalty under the Scheme on having paid the entire amount of tax considering the fact that the petitioner had challenged the assessment order comprising of tax, interest and penalty. The petitioner is therefore entitled to the waiver of the penalty as per the provisions of the Scheme accordingly. As the petitioner is not entitled to the Amnesty Scheme alternative prayer with regard to restoration of the second appeal before the Tribunal would not survive. 17. In view of foregoing reasons, the petitions are allowed and impugned Assessment Orders and notices issued by respondent No.3 are hereby quashed and set aside. The respondent No.3 is hereby directed to grant benefit of Amnesty Scheme to the petitioner. The respondents are further directed to refund amount recovered from the petitioner pursuant to the recovery proceedings with statutory interest within a period of 12 weeks from the date of receipt of copy of this order. Rule is made absolute to the aforesaid extent. No order as to costs.