IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.R.RAMACHANDRA MENON TUESDAY, THE 12TH JANUARY 2010 / 22TH POUSHA 1931 WP(C).No. 31785 of 2009(P) -------------------------- PETITIONER: --------------- MEENA ASOKAN, W/O.C.K.ASOKAN, PROPRIETRIX, O.D.M.SILICATE, CHARANGATTU HOUSE, KANICHUKULANGARA, CHERTHALA, ALAPPUZHA DISTRICT. BY ADV. SRI.DEVAN RAMACHANDRAN ADV. SRI.H.HAMZA ROWTHER ADV. SRI.V.K.PEERMOHAMED KHAN RESPONDENTS: ----------------- 1. THE COMMERCIAL TAX OFFICER, IST CIRCLE, ALAPPUZHA. 2. THE DIRECTOR, DIRECTORATE OF COMMERCE AND INDUSTRY, THIRUVANANTHAPURAM. 3. THE DEPUTY THASILDAR (R.R), TALUK OFFICE, CHERTHALA, ALAPPUZHA. R1 TO R3 BY GOVERNMENT PLEADER ADV. MR. C.K. GOVINDAN. THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 12/01/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: P.R. RAMACHANDRA MENON, J. .............................................................................. W.P.(C) No 31785 OF 2009 ......................................................................... Dated this the 12th January, 2010 J U D G M E N T The petitioner is challenging Ext. P6 order dated 24.02.2009, whereby the benefit already granted vide Ext. P4 has been cancelled. The petitioner contends that absolutely no tax liability could have been mulcted on the shoulders of the petitioner and that the petitioner is very much entitled to have the benefit of exemption and further that necessary application has already been submitted before the appropriate authorities in this regard. Pursuant to approaching this Court by filing O.P.No. 11558 of 2003, Ext. P1 judgment was passed, wherein, the claim of the petitioner for exemption was directed to be considered . Aggrieved of the judgment passed by the Single Bench, the Department took up the matter in W.A. which led to Ext. P2 judgment dated 12.03.2009, whereby the impugned judgment was set aside and the W.A. was allowed. W.P.(C) No 31785 OF 2009 2 2. In the meanwhile, the petitioner submitted necessary applications for availing the benefit of 'Amnesty Scheme', which was considered and the benefit was granted as per Ext. P4 proceedings dated 03.01.2009, whereby the liability to the said extent, was directed to be satisfied by effecting payment as scheduled therein. On receipt of Ext. P4, the petitioner preferred Ext. P5 representation, seeking to keep Ext. P4 proceedings in abeyance, subject to the outcome of W.A. which was then pending. On receipt of Ext. P5 request, the Department issued notice dated 11.02.2009 (as referred to as item No. 3 in Ext. P6) and on finding that the petitioner was not prepared to satisfy the liability as scheduled in Ext. P4, the sanction given to avail the benefit under the Amnesty Scheme 2008-09 was rejected as per Ext. P6 order dated 24.02.2009, which is impugned in this Writ Petition. 3. The learned Counsel for the petitioner submits that the reliance placed by the respondents on the decision rendered by the Apex Court in Bharathiya Telephone Limited vs. The Commissioner of Customs [AIR (2002) SC 74 ] holding that W.P.(C) No 31785 OF 2009 3 the provisions of the Scheme have to be interpreted very strictly, is not applicable to the case in hand. The learned Counsel further submits that the liability of the petitioner to satisfy the tax arose only pursuant to the verdict in the Writ Appeal. The request made by the petitioner vide Ext. P5 to keep the proceedings under Ext.P4 in abeyance till the disposal of the Writ Appeal ought to have been considered by the respondent , submits the learned Counsel . 4. The learned Government Pleader appearing for the respondents submits that there is absolutely no rhyme or reason in raising the above contention, in so far as the petitioner was not entitled to have exemption; more so, when the only direction given in Ext. P1 was to consider the application submitted by the petitioner 'denovo' and dispose of the same in accordance with law, in the light of the Notification SRO.1729/93 and nothing more. This being the position, the contention raised by the petitioner that his liability arose only subsequently, i.e., on finalisation of the Writ Appeal as per Ext. P2 judgment dated 12.03.2009 does not hold any water at all. Further, it has been W.P.(C) No 31785 OF 2009 4 specially observed by this Court in paragraph No.13 of Ext.P1 judgment that no relief can be granted to the petitioner in respect of the challenge raised against the assessment orders (Exts.P8 to P10 therein) . 5. Coming back to the case in hand, the liability to satisfy the due amount under Ext. P4 remains to be an admitted fact. The petitioner was very much aware of the proceedings filed by the Department, challenging Ext. P1 judgment and it was during the pendency of the Writ Appeal, that the petitioner volunteered to avail the benefit of 'Amnesty Scheme' and accordingly necessary application was filed, which in turn was considered and allowed as per Ext.P4. This being the position, this Court does not find any justification as to the contention raised by the petitioner, placing reliance on pendency of the Writ Appeal. 6. It is an undisputed fact that the liberty given to the petitioner to avail the Amnesty Scheme and granted as per Ext. P4 was not availed by the petitioner. In the said circumstances, the said benefit was revoked as per Ext. P6, of course, after giving notice dated 11.02.2009 as referred to in Ext.P6. That W.P.(C) No 31785 OF 2009 5 apart, Ext. P6 order was passed as early as on 24.02.2009 and the petitioner has approached this Court by filing the present Writ Petition only on 06.11.2009. In the above facts and circumstances , the challenge raised against Ext. P6 does not warrant interference. The Writ Petition fails and it is dismissed. P.R. RAMACHANDRA MENON, JUDGE. lk