IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.M.JOSEPH WEDNESDAY, THE 10TH DECEMBER 2008 / 19TH AGRAHAYANA 1930 WP(C).No. 36139 of 2008(B) -------------------------- PETITIONER(S): --------------------- K.H.MOHAMMEDALI, ELLIKAL ENTERPRISES, PATHADIPALAM, EDAPPALLY, ERNAKULAM. BY ADV. SRI.C.J.XAVIER RESPONDENT(S): ----------------------- 1. THE INTELLLIGENCE OFFICER, SQUAD NO.2, COMMERCIAL TAXES DEPARTMENT ERNAKULAM. 2. THE COMMERCIAL TAXL OFFICER, FIRST CIRCLE, KALAMASSERY. 3. SALES TAX APPELLATE TRIBUNAL, ADDITIONAL BENCH, ERNAKULAM. BY GOVT.PLEADER SRI. C.K. GOVINDAN. THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 10/12/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K.M.JOSEPH, J. - - - - - - - - - - - - - - - - - - - - - - - - - WP.(C) No.36139 of 2008 - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 10th day of December, 2008 JUDGMENT The prayers in the writ petition are as follows: “(i) to quash Ext.P1 orders of the first respondent dismissing the prayer for rectification. (ii) Writ of mandamus to the first respondent, directing to adopt the correct figure of Rs.45,08,297/- against wrongly adopted figure of Rs.65,78,297/- worked by him as per Ext.P5 penalty proceedings for the year 2000-2001 as per additional grounds to writ petition No.25999/08. Order to reduce from the penalty worked out of Rs.1,15,778/- deducting 10% of penalty on the wrongly adopted figure of Rs.33,120/- that is adopting Rs.82,658/-. (iii) Writ of certiorari, ordering correction to reduce from the total penalty issued of Rs.2,06,418/- above figure modified to Rs.1,73,293/- considering the error in proceedings of 2000- 2001.” 2. Petitioner is an assessee. Ext.P1 is an intimation of the demand under the Amnesty Scheme, for which petitioner has applied for three years. Ext.P2 is an interim order passed in a writ petition filed by the petitioner. There is an order of penalty. Going by Ext.P3, the penalty order was served on the petitioner on 11.11.2003. The petitioner filed a WPC.36139/2008. 2 rectification application on 30.7.2008, after the passage of four years and nine months. Ext.P3 reveals that the same came to be rejected on the ground that it is beyond three years. Learned counsel for the petitioner would submit that there is a patent mistake, which is apparent on the face of the record. As far as the validity of Ext.P3 order is concerned, as such there is no challenge to the same. Even though learned counsel for the petitioner would submit that there is a power to condone delay under Section 5 of the Limitation Act and he relied on some decisions, I think that it is inapplicable in respect of the powers available under Section 43 of the KGST Act. Learned Government Pleader infact would submit that it is open to the petitioner to prefer appeal against the order of penalty. 3. As far as the question of granting time to pay the amount fixed by Ext.P1 is concerned, I do not think that it is for this court to extend the time. It is for the petitioner to pay the amount or to lose the benefit, which has been granted. I see no merit in this writ petition. The writ petition is dismissed. (K.M. JOSEPH, JUDGE) sb