Sakthi Agencies vs. The Assistant Commissioner Special Circle-Ii - Kerala High Court, 05 November 2021

Cause title — parties, addresses and appearances

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR. JUSTICE BECHU KURIAN THOMAS FRIDAY, THE 5TH DAY OF NOVEMBER 2021 / 14TH KARTHIKA, 1943 WP(C) NO. 13611 OF 2021 PETITIONER : SAKTHI AGENCIES, SAKTHI BUILDINGS, ACHALUMMOODU, PERINADU, KOLLAM, PIN-691 601, REPRESENTED BY ITS PROPRIETOR SRI.JNANESWARAN. BY ADVS. K.S.HARIHARAN NAIR G.REMADEVI RAJATH R NATH HARIMA HARIHARAN RESPONDENTS : 1 THE ASSISTANT COMMISSIONER, SPECIAL CIRCLE-II, DEPARTMENT OF COMMERCIAL TAXES, KOLLAM, PIN-691 002. 2 THE JOINT COMMISSIONER (APPEALS) I, STATE GOODS AND SERVICES TAX DEPARTMENT, KOLLAM, PIN-691 002. BY SENIOR GOVT. PLEADER DR.THUSHARA JAMES THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 05.11.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C) NO. 13611 OF 2021 2 BECHU KURIAN THOMAS, J. ---------------------------------- W.P.(C) No. 13611 of 2021 ----------------------------------- Dated this the 5th day of November, 2021

JUDGMENT Faced with an assessment order under Section 25(1) of the Kerala Value Added Tax Act (for short, ‘the KVAT Act’) for the assessment year 2015-16, petitioner preferred an appeal before the Appellate Authority. While the appeal was pending, a scheme for amnesty was introduced by the Government in the year 2020. One of the conditions of eligibility for obtaining the benefit of the amnesty was to withdraw all the pending appeals.

Desirous of taking the benefit of amnesty scheme, petitioner filed an application under the scheme and awaited the calculation of tax liability. The application for registration claiming the benefit of amnesty scheme is liable to be filed in the tax amnesty portal. Even after resorting to such an application, there was no response from the department. However, on noticing that petitioner had filed an amnesty application, as revealed from the KVATIS portal, the Appellate Authority unilaterally by the impugned order dismissed the appeal for default, reasoning that since the petitioner had opted for the amnesty scheme, it was liable to withdraw the WP(C) NO. 13611 OF 2021 3 pending appeals and that by virtue of its very application for benefit of the amnesty scheme, it ought to be deemed that petitioner has withdrawn the appeal. The aforesaid order is challenged by the petitioner stating that petitioner had neither withdrawn the appeal nor had the petitioner been granted the benefit under the amnesty scheme and now he is left with no remedy and in the lurch.

A perusal of the order impugned shows that the appeal was dismissed for default and also that the Appellate Authority had, by itself, verified the KVATIS amnesty module and learnt that petitioner had opted for the amnesty scheme which obligated him to withdraw the pending appeal. It was further observed in Ext.P4 that, since petitioner had opted for the amnesty scheme, it should be deemed that it had withdrawn the appeal pending before the Appellate Authority. On that basis it was concluded that there was no need to proceed with the appeal and the same merits a dismissal for default.

The reasoning given by the Appellate Authority is ex facie perverse. If the condition for opting for the amnesty scheme or applying for the amnesty scheme is withdrawal of the appeal and if the appeal was not withdrawn, then the same should have only rendered the application for amnesty scheme to be dismissed and WP(C) NO. 13611 OF 2021 4 not vice versa. Applying under the amnesty scheme will not render

the appeal filed by the assessee to be deemed to be dismissed by any stretch of imagination. It is also noteworthy to mention that petitioner claims to have not obtained approval of the benefit of the amnesty scheme also.

In the above circumstances, dismissal of the appeal filed by the petitioner for the assessment year 2015-16 by order dated 29.03.2021, a copy of which is produced as Ext.P4 is liable to be interfered with. In view of the above, Ext.P4 is set aside. The Appellate Authority is directed to take the appeal filed by the petitioner back on its files relating to the assessment year 2015-16 and pass fresh orders on the appeal after hearing the petitioner. The writ petition is allowed as above. BECHU KURIAN THOMAS, JUDGE RKM

WP(C) NO. 13611 OF 2021 5 APPENDIX OF WP(C) 13611/2021 PETITIONER'S EXHIBITS : Exhibit P1OF THE ASSESSMENT ORDER DATED 31.03.2018 ISSUED BY THE ASSISTANT COMMISSIONER, SPECIAL CIRCLE II, KOLLAM. Exhibit P2OF THE APPEAL DATED 13.03.3019 FILED BY THE PETITIONER BEFORE 2ND RESPONDENT. Exhibit P3OF PETITIONER APPLICATION FOR AMNESTY SCHEME 2020 DATED 30.11.2020. Exhibit P4OF THE APPELLATE ORDER DATED 29.03.2021 ISSUED BY THE 2ND RESPONDENT DISMISSION EXT.P2 APPEAL. Exhibit P5 SCREENSHOT SHOWING THE UNAVAILABILITY OF KVAT AMNESTY SCHEME PORTAL. Exhibit P6OF EMAIL BEARING RESTORATION APPLICATION DATED 27.05.2021.