Judgment
IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR. JUSTICE GOPINATH P.
THURSDAY, THE 3RD DAY OF NOVEMBER 2022 / 12TH KARTHIKA, 1944 WP(C) NO. 31532 OF 2022 PETITIONER/S:
A.J ANNNAKUTTY., AGED 56 YEARS PROPRITRESS OF ANJALI BROILERS (DEFUNCT), SRAMBIKKAL HOUSE,KADALIKKAD P.O,VAZHAKKULAM, MUVATTUPUZHA., PIN - 686670 BY ADVS.
K.N.SREEKUMARAN V.V.GEORGEKUTTY P.J.ANILKUMAR (A-1768) RESPONDENT/S:
1 INTELLIGENCE OFFICER (IB) STATE GOODS & SERVICE TAX DEPARTMENT, IDUKKI AT THODUPUZHA., PIN - 686514 2 ASSISTANT COMMISSIONER (NOW RE-DESIGNATED AS DEPUTY COMMISSIONER, DEPARTMENT OF COMMERCIAL TAXES, SPECIAL CIRCLE, PERUMBAVOOR, PIN - 683542 3 DEPUTY COMMISSIONER (APPEALS) STATE GOODS & SERVICE TAX DEPARTMENT, PUBLIC LIBRARY BUILDING, SASTRI ROAD, KOTTAYAM., PIN - 686001 4 DEPUTY COMMISSIONER (APPEALS) STATE GOODS & SERVICE TAX DEPARTMENT, TAX COMPLEX,THEVARA, ERNAKULAM, PIN - 682015 5 KVAT TRIBUNAL (REPRESENTED BY ITS SECRETARY) STATE GOODS & SERVICE TAX DEPARTMENT, TAX COMPLEX,THEVARA, ERNAKULAM., PIN - 682015 6 KVAT TRIBUNAL( REPRESENTED BY THE ASSISTANT SECRETARY ADDL. BENCH,GST COMPLEX, NAGAMPADAM, KOTTAYAM , PIN - 686001 7 TAHSILDAR, TALUK OFFICE, MUVATTUPUZHA-683544.
BY ADV THUSHARA JAMES ADV. THUSHARA JAMES (SR GP) THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 03.11.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
WP(C) NO. 31532 OF 2022 2 JUDGMENT
Petitioner applied for the benefit of the Amnesty Scheme-2020, in respect of the arrears arising under the Kerala Value Added Tax Act, by filing a declaration as contemplated by the Scheme and within the cut of date prescribed by the Scheme.
The petitioner has been found ineligible for Amnesty through Ext.P17, on the ground that Ext.P3 appeal in respect of the assessment year 2005-06 is pending consideration before the Appellate Tribunal, at the instance of the Revenue.
2.
Learned counsel appearing for the petitioner submits that the declaration made by the petitioner under the provisions of the Amnesty Scheme-2020 was initially accepted through Ext.P16. It is submitted that, later through Ext.P17, which is a communication issued to the Law Officer by the Assessing Authority (with copy to the petitioner) it has been stated that the declaration made by the petitioner under the Amnesty Scheme- 2020 cannot be processed on account of the fact that Ext.P3 appeal for the assessment year 2005-06, at the instance of the Revenue, is pending consideration before the Appellate Tribunal.
It is submitted that Ext.P17 communication is contrary to the provisions of the Amnesty Scheme-2020 and it is liable to be set
WP(C) NO. 31532 OF 2022 3 aside.
3.
Learned Senior Government Pleader appearing for the respondents very fairly submits that Ext.P17 may not be in accordance with the provisions of the Scheme and also to the declaration of law by a Division Bench of this Court in Writ Appeal No.573/2020 and connected cases. It is submitted that the matter may, therefore, be directed to be considered in accordance with the provisions of the Scheme.
4.
Section 10(11) of the Kerala Finance Act 2020, containing the Amnesty Scheme-2020, reads as follows:- ‘’Cases involved in Appeals filed by an officer empowered by the Government under Sections 60 and 62 of the former Act and pending final orders can also be opted to be settled under this scheme, reckoning the the demand in the original assessment order.’’ A reading of the above Clause makes it clear that even in cases where an appeal filed by the State is pending adjudication before any of the appellate authorities, including the appellate tribunal, the application made by an assessee can be processed on the basis of the demand raised in the order of assessment. Further, the Division Bench of this Court in W.A. No.573 of 2020 and connected cases, held as follows:-
‘’7. The Circular subsequently issued by the Department, produced as Exhibit P5 in W.P(C) No.31691 of
WP(C) NO. 31532 OF 2022 4 2019 from which W.A.No.573 of 2020 arises, however speaks of the appeals filed by the State being continued and the assessees, who are respondent in such appeals, being not eligible for availing the provisions of the Scheme.
Immediately we have to notice that even the Circular only speaks of cases in which appeals have already been filed by the State. The rejection orders in two cases contemplate the filing of an appeal. Exhibit P4 in W.P(C) No.31691 of 2019 from which W.A.No.573 of 2020 arises, rejects the application on the ground that a second appeal has been proposed against the order of the first appellate authority.
Exhibit P8 in W.P© No.34471 of 2019 from which W.A.No.544 of 2020 arises rejects the application since steps have been taken by the Department to file a second appeal.
Exhibit P7 in W.P© No.31298 of 2019 from which W.A.No.679 of 2020 arises speaks of an appeal having been filed already.
8. We agree with the learned Special Government Pleader that there is no ambiguity in the provision which introduced the Amnesty Scheme. It provides for settlement of all pending tax dues and even the tax applicable, with reference to a penalty imposed where there is no best judgment assessment made or contemplated. The requirement is, filing of an application before the dates specified and the withdrawal of the appeals filed by the assessee. We agree with the learned Special Government Pleader that there is no specific provision for the withdrawal of the State's appeals; which mandate according to us is not required to be specified for reason of the same being an inevitable consequence of the settlement. The Scheme offers a mode of settlement, which if availed of by the assessee, by paying up the amounts as per the determination made on the option exercised, he is absolved from all liabilities pending against him. There is no requirement of a specific provision requiring the State to withdraw the appeal filed, since the settlement arrived at on the basis of the statutory provision is binding on the Department. Here we emphasize sub-section (2), which contemplates cases in which revenue recovery proceedings have already been initiated; which proceedings have to be withdrawn when the matter is settled under Section 31A. That the State's appeal would be rendered infructuous on a settlement arrived at under Section 31A is an inevitable consequence on deposit of amounts determined under sub-section (7).
WP(C) NO. 31532 OF 2022 5
9. In this context, we also have to notice that there is no power given to the State to reject an application and the requirement under sub-section (7); on the filing of an application, is determination of the amounts due as tax, and other amounts, and intimation for the purpose of settlement in installments not exceeding six and not travelling beyond 31.03.2020.’’
5.
Having heard the learned counsel appearing for the petitioner and the learned Senior Government Pleader and having considered the provisions of the Amnesty Scheme-2020 and, in particular, Section 10(11) of Kerala Finance Act, 2020 and also the Judgment of this Court in Writ Appeal No.573 of 2020 and connected cases, this writ petition is allowed and Ext.P17 communication is quashed. The competent among the respondents shall process the application/declaration filed by the petitioner under the provisions of the Amnesty Scheme-2020, in accordance with law.
The writ petition is allowed as above.
sd/- GOPINATH P.
JUDGE ajt
WP(C) NO. 31532 OF 2022 6 APPENDIX OF WP(C) 31532/2022 PETITIONER EXHIBITS Exhibit-P1 TRUE COPY OF THE ORDER NO.24/2005-06 DATED 28..2..2011 ISSUED BY THE 1ST RESPONDENT.
Exhibit-P2 TRUE COPY OF THE ORDER IN KVATA 1690/2011 DATED 26..12..2012 ISSUED BY THE 3RD RESPONDENT.
Exhibit-P3 TRUE COPY OF THE APPEAL MEMORANDUM IN FORM 31 FILED BY THE DEPUTY COMMISSIONER (INTELLIGENCE), THIRUVANANTHAPURAM BEFORE THE 5TH RESPONDENT.
Exhibit-P4 TRUE COPY OF THE ORDER NO.CR 24/2005-06 (REMANDED) DATED 24..3..2015 OF THE 1ST RESPONDENT.
Exhibit-P5 TRUE COPY OF THE ORDER NO.32150202164/2005-06 DATED 22..6..2015 ISSUED BY THE 2ND RESPONDENT.
Exhibit-P6 TRUE COPY OF THE JUDGMENT DATED 25-11-2015 IN W.P. (C) 17642/2015 OF THIS HON'BLE COURT.
Exhibit-P6(a) TRUE COPY OF THE JUDGMENT DATED 25-11-2015 IN W.P. (C) 23567/2015 OF THIS HON'BLE COURT.
Exhibit-P7 TRUE COPY OF THE ASSESSMENT ORDER NO.32150202164/2005-06 DATED 9..3..2016 PASSED BY THE 2ND RESPONDENT.
Exhibit-P8 TRUE COPY OF THE ORDER DATED KVATA 1081/2016 DATED 25..7..2017 ISSUED BY THE 4TH RESPONDENT.
Exhibit-P9 TRUE COPY OF THE ORDER NO.32150202164/2005-06 DATED 26..9..2017 ISSUED BY THE 2ND RESPONDENT.
Exhibit-P10 TRUE COPY OF THE APPEAL MEMORANDUM IN FORM 31 DATED 26..10..2017 FILED BY THE PETITIONER BEFORE THE 5TH RESPONDENT.
Exhibit-P11 TRUE COPY OF THE LETTER DATED 20..7..2016 FILED BY PETITIONER BEFORE THE 2ND RESPONDENT.
Exhibit-P12 TRUE COPY OF THE LETTER DATED 10..1..2018 ADDRESSED BY PETITIONER TO THE 2ND RESPONDENT.
Exhibit-P13 TRUE COPY OF THE CIRCULAR NO.2/2020 DATED 4..4..2020 REGARDING THE SCHEME OF AMNESTY ISSUED BY THE COMMISSIONER OF STATE GOODS & SERVICE TAX DEPARTMENT
WP(C) NO. 31532 OF 2022 7 Exhibit-P14 TRUE COPY OF THE OPTION FOR AMNESTY APPLIED BY PETITIONER ON 29..7..2020 WITH REF: NO.AM 3207200098417 Exhibit-P15 TRUE COPY OF THE ORDER DATED 30..11..2020 IN TA (VAT) 721/2017 BY THE 5TH RESPONDENT.
Exhibit-P16 TRUE PRINT OUT OF THE APPROVAL OF AMNESTY DATED 25..8..2020 BY THE 2ND RESPONDENT.
Exhibit-P17 TRUE COPY OF THE LETTER NO.321502164/2005-06 DATED 15..12..2020 ISSUED BY THE 2ND RESPONDENT TO THE LAW OFFICER, KOTTAYAM REVOKING THE AMNESTY APPROVAL.
Exhibit-P18 TRUE COPY OF THE ORDER DATED 29..4..2021 IN TA (VAT) 160/2014 ISSUED BY THE 6TH RESPONDENT.
Exhibit-P19 TRUE COPY OF THE LETTER DATED 30..11..2021 ADDRESSED BY THE PETITIONER TO THE 2ND RESPONDENT Exhibit-P20 TRUE COPY OF THE NOTICE IN FORM 11 NO.B4- 6514/16 DATED 16..8..2022 ISSUED BY THE 7TH RESPONDENT TO THE PETITIONER.
Exhibit-P21 EXHIBIT-P21: TRUE COPY OF THE LETTER DATED 15..9..2022 ADDRESSED BY THE PETITIONER TO THE 2ND RESPONDENT Exhibit-P22 TRUE COPY OF THE LETTER DATED 16..9..2022 ADDRESSED BY THE PETITIONER TO THE 7TH RESPONDENT WITH ACKNOWLEDGMENT.