IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE C.K.ABDUL REHIM THURSDAY, THE 5TH NOVEMBER 2009 / 14TH KARTHIKA 1931 WP(C).No. 29744 of 2009(K) -------------------------- PETITIONER(S): --------------- BABU ANTONY, S/O.ANTONY, AGED 49 YEARS VADAKKEPARMBIL, PATHIRAPPALLY.P.O. ALAPPUZHA. BY ADV. SRI.VINOD J.DEV SRI.PRAMOD J.DEV RESPONDENT(S): --------------- THE AGRICULTURAL INCOME TAX AND COMMERCIAL TAX OFFICER, OFFICE OF AGRICULTURAL INCOME TAX AND COMMERCIAL TAX OFFICE, ALAPPUZHA. GOVERNMENT PLEADER SRI.C.K.GOVINDAN THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 05/11/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: C.K.ABDUL REHIM.J -------------------------------- W.P.(C).No.29744 of 2009 ------------------------------- Dated this the 5th November,2009 JUDGMENT Petitioner has approached this court aggrieved by Ext.P3 notice by which the petitioner was threatened with recovery steps under the Kerala Revenue Recovery Act, for realisation of the tax amounts due with respect to the year 1998-1999. The recovery steps are initiated, because the petitioner failed to make payment of the amounts under the Amnesty Scheme, which was allowed to him. The amount of tax payable by the petitioner was Rs.2,63,192/- (Rupees Two Lakhs Sixty Three Thousand One Hundred and Ninety Two only). The Amnesty Scheme as provided in Section 23 B of the KGST Act was allowed, reducing the amount to Rs.1,89,137/- (Rupees One Lakh Eighty Nine Thousand One Hundred and Thirty Seven only). The petitioner was directed to make payment of 25% of the said amount within 15 days of receipt of the intimation, and the balance amount in three equal instalments at the rate of Rs.47,284/- (Rupees Forty Seven Thousand Two Hundred W.P.(C).No.29744 of 2009 2 and Eighty Four only) each, starting from the month of October 2008. It is further stated in Ext.P1 that all the three instalments shall be paid before 10th of every month. 2. The petitioner remitted 25% of the amount on 8/7/2009. Thereafter he made payment of Rs.25,000/- (Rupees Twenty Five Thousand only) on 8/9/2009. According to the petitioner, prompt payments could not be made due to heavy financial loss suffered by him in the business activity. While so Ext.P3 notice was issued to the petitioner intimating that if the balance amount is not remitted within 3 days, recovery steps will be initiated for the realisation of the entire amount of tax in arrears. According to the petitioner he had approached the respondent on receipt of Ext.P3 and requested for two months time to settle payment of the entire amounts. But that request was not acceded to and recovery steps has now been initiated. 3. In the counter affidavit filed on behalf of respondents it is admitted that petitioner had effected remittance of two instalments. But it is contended that, W.P.(C).No.29744 of 2009 3 thereafter the petitioner made a request to permit payment of the balance amount within 10 days and such request was accepted on condition that on failure the permission will be revoked. The petitioner had not remitted the amount within 10 days of receipt of same as requested. Therefore the permission granted under the Amnesty Scheme was cancelled, through order No.13200072/09-10 dated 5/9/2009, and thereafter the entire tax amount is liable to be recovered. It is further stated that permission under the Amnesty Scheme is purely a contract/agreement between the Department and the dealer and on any failure from the side of the dealer to comply with the terms of such contract, he will loose the benefit of such scheme. Respondents are relying on the dictum laid by the Hon'ble Supreme Court in Bharathiya Telephone Limited Vs.The Commissioner of Customs reported in AIR 2002 SC 74, in support of the above contention. 4. It is noticed from Ext.P1 communication that the petitioner was requested to remit 25% of the amount within 15 days and the balance amount in three equal monthly W.P.(C).No.29744 of 2009 4 instalments starting from the month of October 2008.In fact going by the provision contained in Section 23 B (4), after payment of 25% the dealer has to pay balance amount in three monthly instalments, starting from the next month onwards. However, it is evident that petitioner had remitted initial instalments, of 25% and further paid an amount Rs.25,000/- (Rupees Twenty Five Thousand only). It is further evident that petitioner was not given any reasonable time, on issuance of Ext.P3 notice, because the time allowed was only three days. Going by the stipulations in Ext.P1, petitioner need to pay the entire balance only before December 2008. 5. Having regard to the entire facts and circumstances I am of the opinion that leniency can be shown in the matter for permitting the petitioner to pay the balance amount as per Ext.P1 within a short period. 6. Accordingly the writ petition is disposed directing the respondent to accept payment of the balance amount due under Ext.P1 towards full and final settlement of payment of W.P.(C).No.29744 of 2009 5 the tax amount due for the year 1998-1999, if the petitioner makes payment of the balance amount therein, on or before 20/11/2009. If payment as above is made, it is needless to say that, respondents will be refrained from any further coercive step of recovery. C.K.ABDUL REHIM,JUDGE ssn