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M/S.Agappe Diagnostics LTD. vs. The Asst. Commissioner, Special Circle

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WP(C)/26201/2018HC KeralaGSTCNR KLHC01057788201827 September 2019Bench: HONOURABLE DR. JUSTICE A.K.JAYASANKARAN NAMBIAR12 pages

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR. JUSTICE A.K.JAYASANKARAN NAMBIAR FRIDAY, THE 27TH DAY OF SEPTEMBER 2019/5TH ASWINA, 1941 W.P(C).No.26201 OF 2018(A) PETITIONERS: M/S.AGAPPE DIAGNOSTICS LTD. AGAPPE HILLS, PATTIMATTOM P.O., ERNAKULAM DISTRICT, REPRESENTED BY DILEEP K.M., MANAGER FINANCE. BY ADVS.SRI.HARISANKAR V. MENON SMT.K.KRISHNA SMT.MEERA V.MENON RESPONDENTS: 1 THE ASST. COMMISSIONER, SPECIAL CIRCLE DEPARTMENT OF COMMERCIAL TAXES,PERUMBAVOOR - 683 542. 2 THE COMMISSIONER OF STATE GST TAX TOWERS, KILLIPPALAM, KARAMANA, THIRUVANANTHAPURAM - 695 002. 3 STATE OF KERALA REPRESENTED BY ITS SECRETARY, TAXES DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM - 695

001.

BY SMT.M.M.JASMINE, GOVT. PLEADER THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 27.09.2019 ALONG WITH W.P(C).30373/2018(V), W.P(C).36213/2018(B) & W.P(C).36219/2018(B), THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

W.P.(C).Nos.26201, 30373, 36213 & 36219/2018 : 2 : IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR. JUSTICE A.K.JAYASANKARAN NAMBIAR FRIDAY, THE 27TH DAY OF SEPTEMBER 2019/5TH ASWINA, 1941 W.P(C).No.30373 OF 2018(V) PETITIONER: M/S. MAYA REALTORS (P)LTD. PATTURAICKAL, THRISSUR, REPRESENTED BY ITS DIRECTOR, V. RAMAKRISHNAN BY ADVS.SRI.HARISANKAR V. MENON SMT.MEERA V.MENON RESPONDENTS: 1 THE STATE TAX OFFICER (WC) DEPARTMENT OF STATE GST, THRISSUR – 680 001 2 THE COMMISSIONER OF STATE GST, TAX TOWERS, KILLIPPALAM, KARAMANA, THIRUVANANTHAPURAM – 695 002. 3 STATE OF KERALA, REPRESENTED BY ITS SECRETARY, TAXES DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM – 695 001. R1-3 BY SMT.M.M.JASMINE,GOVT. PLEADER THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 27.09.2019 ALONG WITH W.P(C).26201/2018(A), W.P(C).36213/2018(B) & W.P(C).36219/2018(B), THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

W.P.(C).Nos.26201, 30373, 36213 & 36219/2018 : 3 : IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR. JUSTICE A.K.JAYASANKARAN NAMBIAR FRIDAY, THE 27TH DAY OF SEPTEMBER 2019/5TH ASWINA, 1941 W.P(C).No.36213 OF 2018(B) PETITIONER: M/S.REGENCY CLUB, KUTTANELLOOR, THRISSUR DISTRICT, REP. BY ITS SECRETARY, VITO VARGHESE AKKARA. BY ADVS.SRI.HARISANKAR V. MENON SMT.MEERA V.MENON RESPONDENTS: 1 THE STATE GOODS AND SERVICE TAX OFFICER, (COMMERCIAL TAX OFFICER), FOURTH CIRCLE, STATE GOODS AND SERVICES TAX DEPARTMENT, THRISSUR – 680 004. 2 THE COMMISSIONER OF STATE GST, TAX TOWERS, KILLIPPALAM, KARAMANA, THIRUVANANTHAPURAM – 695 002. 3 STATE OF KERALA, REPRESENTED BY ITS SECRETARY, TAXES DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM – 695

001.

R1-3 BY SMT.M.M.JASMINE, GOVT. PLEADER THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 27.09.2019 ALONG WITH W.P(C).26201/2018(A), W.P(C).30373/2018(V) & W.P(C).36219/2018(B), THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

W.P.(C).Nos.26201, 30373, 36213 & 36219/2018 : 4 : IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR. JUSTICE A.K.JAYASANKARAN NAMBIAR FRIDAY, THE 27TH DAY OF SEPTEMBER 2019/5TH ASWINA, 1941 W.P(C).No.36219 OF 2018(B) PETITIONER: M/S.REGENCY CLUB, KUTTANELLOOR, THRISSUR DISTRICT, REPRESENTED BY ITS SECRETARY, VITO VARGHESE AKKARA. BY ADVS.SRI.HARISANKAR V. MENON SMT.MEERA V.MENON RESPONDENTS: 1 THE STATE GOODS AND SERVICE TAX OFFICER, (COMMERCIAL TAX OFFICER), FOURTH CIRCLE, STATE GOODS AND SERVICES TAX DEPARTMENT, THRISSUR - 680 004. 2 THE COMMISSIONER OF STATE GST, TAX TOWERS, KILLIPPALAM, KARAMANA, THIRUVANANTHAPURAM - 695 002. 3 STATE OF KERALA, REPRESENTED BY ITS SECRETARY, TAXES DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM-695 001. R1-3 BY SMT.M.M.JASMINE, GOVT. PLEADER THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 27.09.2019 ALONG WITH W.P(C).26201/2018(A), W.P(C).30373/2018(V), W.P(C).36213/2018(B), THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

W.P.(C).Nos.26201, 30373, 36213 & 36219/2018 : 5 : J U D G M E N T In all these writ petitions, the limited prayer of the petitioners is with regard to the adjustment of amounts paid under the earlier Amnesty Scheme of 2018, towards the amounts payable under the Amnesty Scheme of 2019. It is stated by the learned counsel for the petitioners that, under the erstwhile Scheme, substantial amounts were paid by the petitioners towards getting the Amnesty benefits. The Department however adjusted the said amounts towards the interest liability first, and therefore, nothing was remaining for adjustment towards the tax dues. The prayer of the petitioners

therefore is that the amounts paid by them under the erstwhile Scheme be treated as payments under the 2019 Scheme, so that the amounts paid by them will be given credit under tax as per the present Scheme.

2.

I have heard the learned counsel for the petitioners as also the learned Government Pleader for the respondents.

W.P.(C).Nos.26201, 30373, 36213 & 36219/2018 : 6 :

3.

On a consideration of the facts and circumstances of the case as also the submissions made across the bar, I find from a perusal of the Amnesty Scheme for settlement of arrears introduced by the Kerala Finance Bill, 2019 and as clarified by Circular No.3/2019 dated 1.4.2019 of the Commissioner of State Goods and Services Tax Department, Government of Kerala, that the 2019 Scheme clearly contemplates that the assessees, who have opted for Amnesty Scheme earlier, but could not settle the arrears, can opt for the benefit under the 2019 Scheme. It is made clear that amounts if any paid during the earlier Schemes will be given credit under tax as per the 2019 Scheme. It is also clarified that amounts paid after the service of demand notice will also be given credit under tax as per the 2019 Scheme. The only exception is with regard to amounts paid towards penalty or its interest, which, as per the 2019 Scheme, will not be credited towards tax.

4.

In the light of the clear provisions in the 2019 Scheme, whereby, amounts paid during the earlier Schemes will be given credit under tax as per the 2019 Scheme, the petitioners are permitted to withdraw these writ petitions, without prejudice to their right to move under the 2019 Amnesty Scheme, for settlement of the

W.P.(C).Nos.26201, 30373, 36213 & 36219/2018 : 7 : arrears of tax. While considering their applications for Amnesty benefit under the 2019 Scheme, the clarification given in this judgment shall be taken note of by the Assessing Officer. The writ petitions are dismissed as withdrawn. A.K.JAYASANKARAN NAMBIAR JUDGE prp/27/9/19

W.P.(C).Nos.26201, 30373, 36213 & 36219/2018 : 8 : APPENDIX OF W.P(C).NO.26201/2018 PETITIONER'S EXHIBITS: EXHIBIT P1. COPY OF ORDER ISSUED BY THE 1ST RESPONDENT FOR THE YEAR 2007-08 (KVAT) DATED 18.03.2015. EXHIBIT P1 (A). COPY OF ORDER ISSUED BY THE 1ST RESPONDENT FOR THE YEAR 2007-08 (CST) DATED 18.03.2015. EXHIBIT P2. COPY OF APPELLATE ORDER IN TA (VAT) NO.90/2016 OF THE APPELLATE TRIBUNAL, ERNAKULAM DATED 16.02.2018. EXHIBIT P2 (A). COPY OF APPELLATE ORDER IN TA (VAT) NO.91/2016 OF THE APPELLATE TRIBUNAL, ERNAKULAM DATED 16.02.2018. EXHIBIT P3. COPY OF ORDER ISSUED BY THE ASST. COMMISSIONER, PERUMBAVOOR, ERNAKULAM DATED 15.05.2018. EXHIBIT P4. COPY OF JUDGMENT IN OT REV.NOS.49 AND 50/18) OF THIS HON'BLE COURT DATED 28.06.2018. EXHIBIT P5. COPY OF APPLICATION FILED BY THE PETITIONER BEFORE THE 1ST RESPONDENT DATED 30.06.2018. EXHIBIT P5 (A). COPY OF APPLICATION FILED BY THE PETITIONER BEFORE THE 1ST RESPONDENT DATED 30.06.2018. W.P.(C).Nos.26201, 30373, 36213 & 36219/2018 : 9 : EXHIBIT P6. COPY OF COVERING LETTER SUBMITTED BY THE PETITIONER DATED 30.04.2018. EXHIBIT P6 (A). COPY OF COVERING LETTER SUBMITTED BY THE PETITIONER DATED 30.06.2018. EXHIBIT P7. RESPONDENTS EXHIBITS: COPY OF COMMON ORDER ISSUED BY THE 1ST RESPONDENT DATED 03.07.2018. NIL. //// P.S. TO JUDGE

W.P.(C).Nos.26201, 30373, 36213 & 36219/2018 : 10 : APPENDIX OF W.P(C).NO.30373/2018 PETITIONER'S EXHIBITS: EXHIBIT P1 COPY OF ASSESSMENT ORDER ISSUED BY THE 1ST RESPONDENT FOR THE YEAR 2005-06 DATED 30.5.2012. EXHIBIT P2 COPY OF ORDER ISSUED BY THE ASST. COMMISSIONER (APPEALS), THRISSUR DATED 16.10.2012. EXHIBIT P3 COPY OF ORDER ISSUED BY THE DY. COMMISSIONER (APPEALS), THRISSUR DATED 17.8.2017. EXHIBIT P4 COPY OF ORDER ISSUED BY THE 1ST RESPONDENT DATED 4.6.2018. EXHIBIT P5 COPY OF APPEAL FILED BY THE PETITIONER BEFORE THE DY. COMMISSIONER (APPEALS), THRISSUR DATED 20.6.2018. EXHIBIT P6 COPY OF ORDER ISSUED BY THE 1ST RESPONDENT DATED 4.7.2018. EXHIBIT P7 RESPONDENTS EXHIBITS: COPY OF INTIMATION ISSUED BY THE 1ST RESPONDENT DATED 4.7.2018. NIL. //// P.S. TO JUDGE

W.P.(C).Nos.26201, 30373, 36213 & 36219/2018 : 11 : APPENDIX OF W.P(C).NO.36213/2018 PETITIONER'S EXHIBITS: EXHIBIT P1 COPY OF ASSESSMENT ORDER ISSUED BY THE 1ST RESPONDENT FOR THE YEAR 2009-10 DATED 1.11.2013. EXHIBIT P1 (A) COPY OF ASSESSMENT ORDER ISSUED BY THE 1ST RESPONDENT FOR THE YEAR 2010-11 DATED 13.11.2013. EXHIBIT P2 RESPONDENTS EXHIBITS: EXHIBIT R-1(A) EXHIBIT R-1(B) COPY OF ORDER ISSUED BY THE 1ST RESPONDENT DATED 11.7.2018. COPY OF THE ORDER DATED 23.10.2017 IN KVATA NO.164 OF 2016, THE APPEAL FILED BY THE PETITIONER FOR THE YEAR 2009-10. COPY OF THE ORDER DATED 23.10.2017 IN KVATA NO.368 OF 2016, THE APPEAL FILED BY THE PETITIONER FOR THE YEAR 2010-11. //// P.S. TO JUDGE

W.P.(C).Nos.26201, 30373, 36213 & 36219/2018 : 12 : APPENDIX OF W.P(C).NO.36219/2018 PETITIONER'S EXHIBITS: EXHIBIT P1 COPY OF ORDER ISSUED BY THE DEPUTY COMMISSIONER (APPEALS) THRISSUR IN KVATA 412/13 FOR THE YEAR 2005-06. EXHIBIT P1 (A) COPY OF ORDER ISSUED BY THE DEPUTY COMMISSIONER(APPEALS) THRISSUR IN KVATA 413/13 FOR THE YEAR 2006-07. EXHIBIT P1 (B) COPY OF ORDER ISSUED BY THE DEPUTY COMMISSIONER(APPEALS) THRISSUR IN KVATA 414/13 FOR THE YEAR 2007-08. EXHIBIT P1 (C) COPY OF ORDER ISSUED BY THE DEPUTY COMMISSIONER(APPEALS) THRISSUR IN KVATA 411/13 FOR THE YEAR 2008-09. EXHIBIT P2 COPY OF ORDER ISSUED BY THE KERALA VALUE ADDED TAX APPELLATE TRIBUNAL, ERNAKULAM. EXHIBIT P3 RESPONDENTS EXHIBITS: COPY OF ORDER ISSUED BY THE 1ST RESPONDENT. NIL. //// P.S. TO JUDGE

Reproduced from the public record of the Kerala High Court. Verify against the court's own copy before relying on it. Income tax judgments are on bharattax.net.