IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.R.RAMACHANDRA MENON WEDNESDAY, THE 15TH SEPTEMBER 2010 / 24TH BHADRA 1932 WP(C).No. 24527 of 2007(T) -------------------------------------- PETITIONER(S): ----------------------- M.SUBAIRKUTTY,KOCHAYYAM TRADERS, MARKET, KARUNAGAPALLY. BY ADVS. SRI.ARIKKAT VIJAYAN MENON SRI.HARISANKAR V. MENON RESPONDENT(S): --------------------------- 1. INTELLINGENCE OFFICER, SQUAD NO.II, AGRI. INCOME TAX & SALES TAX DEPARTMENT, THIRUVANANTHAPURAM AT ATTINGAL. 2. TAHSILDAR (REVENUE RECOVERY) TALUK OFFICE, KARUNAGAPPALLY. 3. VILLAGE OFFICER, KARUNAGAPALLY. BY GOVT. PLEADER SRI.K.P.PRADEEP THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 15/09/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C) NO.24527/2007 APPENDIX PETITIONER'S EXHIBITS P1:- COPY OF THE JUDGMENT OF THIS HONOURABLE COURT IN OP. NO.7051/1998 DTD. 4.6.2004. P2:- COPY OF THE COUNTER AFFIDAVIT IN OP. NO.7051/98 DT.D 16.8.1999. P3:- COPY OF THE LETTER ISSUED BY THE 2ND RESPONDENT DTD. DTD. 18.7.07. TRUE COPY P.A. TO JUDGE tss P.R. RAMACHANDRA MENON J. ~~~~~~~~~~~~~~~~~~~~~~~ W.P. (C) No. 24527 of 2007 ~~~~~~~~~~~~~~~~~~~~~~~ Dated, this the 15th day of September, 2010 JUDGMENT The petitioner is challenging the recovery proceedings being pursued by the respondents resorting the remedy under the Kerala Revenue Recovery Act in respect of the arrears payable under the relevant provisions of the KGST Act. 2. The petitioner, who is stated as a commission agent and an assessee under KGST and CST Act, was mulcted with the liability to pay 'penalty' imposed under Section 45 A of the KGST Act, in respect of the assessment years 1991-'92 and 1993-'94. Eventhough, the proceedings were taken up by filing Revision Petitions, the same did not turn to be much fruitful, when it was sought to be compounded by the petitioner and a sum of Rs.1 lakh was paid in this regard. When further proceedings were being pursued, the petitioner was constrained to approach this Court by filing O.P No. 7051 of 1998, which culminated in Ext. P1 verdict, whereby the liability was reduced to an amount 'equal to the tax' and it has become final, as no further appeal has been preferred, either from the part of the petitioner or from the part of Revenue. W.P. (C) No. 24527 of 2010 : 2 : 3. The learned counsel for the petitioner submits that the petitioner has satisfied a substantial amount during the pendency of the above proceedings and it is without any regard to the same, that Ext.P3 notice has been issued demanding a sum of Rs. 4,76,593/-. This made the petitioner to approach this Court by filing the present Writ Petition which was admitted on 13.08.2007, granting interim stay, on condition that, the petitioner satisfied a sum of Rs.50,000/- which is stated as complied with. 4. With reference to the materials on record, the learned counsel for the petitioner submits that, the petitioner has altogether paid Rs. 4.5 lakhs including a sum of Rs. 1 lakh satisfied for having the offence compounded. It is also stated that the petitioner is ready and willing to satisfy the balance amount, after giving credit to the sum of Rs. 4.5 lakhs; which however was not accepted by respondents disputing the receipt of Rs.1 lakh stated as effected by the petitioner while seeking to compound the offence. The learned counsel brought it to the notice of this Court that the satisfaction of the above sum of Rs. 1 lakh has very much been conceded by the respondents in paragraph 6 of Ext. P2 filed in the earlier Original Petition; wherein Ext. P1 judgment was passed with specific reference to the payment of the aforesaid amount of Rs. 1 lakh as well. This being the position, it is not correct or proper to the W.P. (C) No. 24527 of 2010 : 3 : respondents to take a 'U' turn, disputing the satisfaction of the said amount and issuing Ext. P3 demanding the entire amount of Rs.4,76,593/-, which hence is sought to be intercepted by this Court. 5. No counter affidavit has been filed from the part of the respondents to rebut the above specific averments. Even otherwise, no affidavit can improve the factual position as admitted by the respondents in their counter affidavit filed in the earlier Original Petition and absolutely no proof is required in this regard, in view of the fundamental principle embodied under Section 58 of the Finance Act that admitted fact does not require to be proved. 6. The learned Government Pleader submits that the stand of the respondents is only with regard to the manner of appropriation of amount and not with regard to the non receipt of Rs.1 lakh; pointing out that the amount satisfied by the petitioner at different points of time have already been appropriated in respect of the tax. 7. In the above circumstances, the respondents are directed to finalize the proceedings as to the balance liability of the petitioner, giving credit to sum of Rs. 3.5 lakhs already remitted by the petitioner and also the sum of Rs. 1 lakh admittedly effected by the petitioner as conceded in paragraph 6 of Ext. P2 counter affidavit and taken note of in Ext. P1 judgment, after giving an opportunity of hearing to the W.P. (C) No. 24527 of 2010 : 4 : petitioner, as expeditiously as possible, at any rate, within a period of two months. On finalization of the proceedings as above, the balance shall be cleared by the petitioner within one month thereafter. This will not stand in the way of petitioner from availing the benefit of the 'Amnesty Scheme', if so advised, in terms of the 'Scheme'. The Writ Petition is disposed of. P. R. RAMACHANDRA MENON, JUDGE kmd