IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.M.JOSEPH MONDAY, THE 23RD MARCH 2009 / 2ND CHAITHRA 1931 WP(C).No. 9090 of 2009(E) ------------------------------------ PETITIONER(S): ---------------------- M/S.KALYAN TEXTILES & JEWELLERY, JAI HIND MARKET BUILDING M.C.ROAD, THRISSUR, REPRESENTED BY ITS MANAGING PARTNER, T.S.KALYANA RAMAN. BY ADV. SMT.S.K.DEVI SRI.SANTHOSH P.ABRAHAM RESPONDENT(S): ------------------------- 1. THE COMMERCIAL TAX OFFICER I, COMMERCIAL TAXES, IST CIRCLE, THRISSUR. 2. THE SALES TAX APPELLATE TRIBUNAL, ADDL.BENCH, NOORANI, PALAKKAD. 3. THE INSPECTING ASST.COMMISSIONER, COMMERCIAL TAXES, THRISSUR. BY GOVERNMENT PLEADER SRI.C.K.GOVINDAN. THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 23/03/2009,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K.M.JOSEPH, J. ------------------------------------------------------ W.P.(C) No.9090 of 2009-E ---------------------------------------------- Dated, this the 23rd day of March, 2009 J U D G M E N T Petitioner challenges Exts.P2, P8, P4 and P9. In the writ petition, petitioner seeks a direction to the 2nd respondent to dispose of Ext.P3 appeal and to declare that petitioner is eligible for the reduction provided under section 23B of the Act and the appropriation under section 55C while section 23B is applicable is incorrect. 2. I heard learned counsel for the petitioner and learned Government Pleader. 3. Petitioner approached this court earlier in W.P.(C) No.35665/2008. Ext.P5 is the judgment in the said writ petition. Petitioner therein had challenged the very same assessment as Ext.P2. Thereafter, to enable the petitioner to avail the benefit of the Amnesty Scheme, recovery proceedings were kept in abeyance for a period of three weeks. It is also stated in Ext.P5 that if the petitioner remits the entire amount in terms of the law to maintain the WPC No. 9090/2009 -2- appeal, the appeal would be considered. Petitioner filed Ext.P6 application seeking Amnesty Scheme. Ext.P7 is the intimation. Thereafter, he is served with Ext.P8. Ext.P8 reads as follows: PROCEEDINGS OF THE COMMERCIAL TAX OFFICER, FIRST CIRCLE,THRISSUR. PRESENT: V.USHADEVI Sub:Revised Annexure II-M/s.Kalyan Textiles & Kewellery., M.O.Road, Thrissur. Read: Your application dated 31.12.08 under Amnesty Scheme. ..................... You have filed an application dated 31.12.08 under Amnesty Scheme showing an interest Rs.2,77,502/- and I have issued Annexure II on the same date allowing to settle the arrears under the scheme. But on the verification of the records, it is seen that a notice dated 07- 10-08 have issued to you showing the balance tax Rs.2,77,052/- to be paid. Hiding this notice, you filed a new application under Amnesty showing this tax amount as interest. As the last date of this scheme and several numbers of applications are received, I could'nt notice the amount you applied under this scheme is interest instead of tax amount. Hence I issued a revised order of Annexure II. ORDER NO.2511 2245/03-04 DATED, 31.01.09 The amount showing in the application is not interest, it is the tax amount as per the notice dated, 07-10-08 issued to you. Hence your application dated 31.12.08 under Amnesty scheme showing the interest Rs.2,77,502 is cancelled. Tax amount for 03-04 have no any credit under Amnesty scheme. The amount Rs.27,750/- paid as per chalan No.335/27.01.09 have credited to the balance tax amount Rs.2,77,052 and the balance tax Rs.2,49,302 is ordered to be paid immediately. COMMERCIAL TAX OFFICER, FIRST CIRCLE, THRISSUR. WPC No. 9090/2009 -3- 4. Ext.P9 is the notice calling to pay the amount. The arrears sought to be settled under the Amnesty Scheme related to the year 2003-2004. Admittedly, the tax was due for the said year in a sum of Rs.4,20,457/-. The said amount was paid on 4.10.2008. The application seeking benefit of Amnesty scheme was filed only on 31.12.2008. When the amount of Rs.4,20,457/- was paid an amount of Rs.2,77,052/- was outstanding as interest. Apparently, petitioner applied Amnesty scheme making it clear that there is no amount due towards tax and the amount was due towards interest only. It is on the basis of the same, the mistake was corrected and Ext.P8 was issued followed by Ext.P9. Learned counsel for the petitioner projected only one contention before me. He would submit that the Amnesty Scheme 2008-2009 was in existence at the time when the petitioner made payment of Rs.4,20,457/- on 4.10.2008. According to him, therefore, the amount should have been appropriated towards tax. It is the case of the petitioner that what would have been remained is interest. I find myself totally unable to accept this contention. WPC No. 9090/2009 -4- The mere fact that Amnesty Scheme is in force would not circumvent the provisions of Section 55C of the Kerala General Sales Tax Act, 1956 which provides that any payment made after 1.1.2000 even if there is a request that it should be adjusted towards tax, that amount should be adjusted first towards interest outstanding, and, only if there is any amount remaining after adjustment towards the interest, it shall be adjusted towards tax amount. The mere fact that Amnesty Scheme is pending cannot have the effect of defeating the clear language of section 55C. Therefore, when the amount of Rs.4,20,457/- was paid on 4.10.2008 when particularly there was no application even filed by the petitioner under the Amnesty Scheme, the amount could have been first adjusted towards interest of Rs.2,77,052/- and it is only thereafter any reduction in the tax amount would have taken place by adjustment . 5. Petitioner is not entitled for any benefit under the Amnesty Scheme. As correctly found by the respondent, demand made in Exts.P8 and P9 is perfectly correct and therefore there is no merit in the writ petition filed and it is WPC No. 9090/2009 -5- rejected. Proceedings against the petitioner will be kept in abeyance provided the petitioner remits Rs.1 lakh before 31.3.2009 and remits the further amount with interest within two weeks from 31.3.2009. (K.M.JOSEPH) JUDGE. MS