Kerala High Court
Khader M.A vs State Of Kerala on 6 August, 2020
Author: A.K.Jayasankaran Nambiar
Bench: A.K.Jayasankaran Nambiar
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE A.K.JAYASANKARAN NAMBIAR
THURSDAY, THE 06TH DAY OF AUGUST 2020 / 15TH SRAVANA, 1942
WP(C).No.13834 OF 2020(D)
PETITIONER/S:
KHADER M.A.
AGED 68 YEARS
MADATHILPARAMBIL HOUSE, CHALISSERY, PALAKKAD - 679
536.
BY ADV. SMT.JAYASREE K.P.
RESPONDENT/S:
1 STATE OF KERALA
REPRESENTED BY SECRETARY, DEPARTMENT OF FINANCE,
SECRETARIAT, THIRUVANANTHAPURAM, PIN - 695001.
2 COMMISSIONER, OFFICE OF THE COMMISSIONER
STATE GOODS AND SERVICES TAX DEPARTMENT,
THIRUVANANTHAPURAM, PIN - 695001.
3 DEPUTY TAHSILDAR, PATTAMBI TALUK
PALAKKAD, KERALA - 679 303.
OTHER PRESENT:
GP THUSHARA JAMES
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON
06.08.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
WP(C).No.13834 OF 2020(D)
2
JUDGMENT
The petitioner has approached this Court seeking a direction to the respondents 1 and 2 to consider an application preferred for settling a liability to pay redemption fine, under the Kerala Amnesty Scheme, 2020. The facts in the writ petition would indicate that two vehicles belonging to the petitioner, who runs a transporting business, were apprehended by the respondent on 19.12.2015 while they were transporting arecanuts. While the vehicles in question were confiscated, the inspecting Assistant Commissioner, Malappuram permitted a redemption of the vehicle on payment of redemption fines. It would appear that the petitioner remitted a portion of the redemption fine at the time of obtaining a release of the goods with an assurance that the balance amounts would be paid shortly. Instead of paying the balance amount, however, the petitioner impugned the orders of the Inspecting Assistant Commissioner, Malappuram before the Deputy Commissioner, Palakkad. The said Revision Petition came to be dismissed by an order dated 26.10.2016. A further Revision Petition/Appeal before the Sales Tax Appellate Tribunal also did not meet with any success and the same also came to be dismissed by the Appellate Tribunal. It is, thereafter, that the petitioner was served with the revenue recovery notices (Exts.P7 and P8) for recovery of the balance redemption fine amounts in respect of the vehicles. In the writ petition, the petitioner seeks to avail the benefit of Amnesty Scheme for settling the dues towards redemption fine.
2. In support of her contentions as regards the applicability of the scheme WP(C).No.13834 OF 2020(D) 3 to arrears of redemption fine, reference is made to the Kerala Finance Bill, 2020 wherein Section 12 of the Kerala Finance Act 2019 has been amended to make a provision for settling arrears of tax or any other amount due under the Act on payment of 50% of the principle amount of tax in arrears or 40% of the principle amount of tax in arrears, if the amount is paid in lump sum within 30 days of receipt of intimation of the assessing authority. By a proviso to the said Section, it is also made clear that their evidence, details and records pertaining to penalty levied is not utilised or not liable to be utilised for any best judgment assessment under the former Act, the demand relating to such penalty shall be settled on payment of applicable tax relating to the penalty as determined by the assessing authority. The petitioner seeks to place emphasis on the words 'any other amount due under the Act' to contend that the arrears of redemption fine also would be covered under the Amnesty Scheme.
3. The learned Government Pleader, on the other hand, would submit that the Amnesty Scheme covers only tax, penalty and any other amount under the circumstances indicated under the scheme. The provisions of Section 12 as substituted are relied upon to suggest that, in as much as the quantification of the amount payable under the scheme is with reference to the principal amount of tax in arrears, there has to be an arrears of tax outstanding, together with incidental amounts of interest, penalty or other amount, for the scheme to be made applicable to a defaulting assessee.
4. I have heard Smt.Jayasree K.P., the learned counsel for the petitioner and Dr.Thushara James, the learned Government Pleader for the respondents.
5. On a consideration of the facts and circumstances of the case, and the WP(C).No.13834 OF 2020(D) 4 submissions made across the Bar, I find force in the contention of the learned Government Pleader that, in the absence of any arrears of tax, the Amnesty Scheme will not be workable for settling any amount other than what is expressly mentioned under the scheme. Moreover, in the instant case, the amount of redemption fine was in lieu of absolute confiscation of the vehicle that was apprehended by the respondent. In other words, the petitioner obtained the benefit of release of the vehicles that were otherwise liable for absolute confiscation, based on an undertaking to pay the balance amounts of redemption fine in lieu of confiscation. Inasmuch as the redemption fine was in lieu of confiscation and the petitioner obtained the benefit against confiscation of the vehicles as early as in 2015, the redemption fine cannot be seen as 'any other amount' for the purposes of the Amnesty Scheme. The non-payment of the balance redemption fine by the petitioner can only be viewed as a default in the payment of an amount which was a condition for obtaining the release of the vehicle and in that sense, it cannot be seen as arrears of amounts under the Act, for the purposes of the Amnesty Scheme.
In the result, I find that the relief sought for in the writ petition cannot be granted. The Writ Petition fails and is, accordingly, dismissed.
Sd/-
A.K.JAYASANKARAN NAMBIAR JUDGE Sd WP(C).No.13834 OF 2020(D) 5 APPENDIX PETITIONER'S/S EXHIBITS:
EXHIBIT P1 TRUE COPY OF THE ORDER DATED 15/06/2016 ISSUED BY THE INSPECTING ASSISTANT COMMISSIONER, MALAPPURAM.
EXHIBIT P2 TRUE COPY OF THE DEMAND NOTICE DATED
15/06/2016 ISSUED BY THE INSPECTING
ASSISTANT COMMISSIONER, MALAPPURAM.
EXHIBIT P3 TRUE COPY OF THE ORDER DATED 16/06/2016
ISSUED BY THE INSPECTING ASSISTANT
COMMISSIONER, MALAPPURAM.
EXHIBIT P4 TRUE COPY OF THE DEMAND NOTICE DATED
16/06/2016 ISSUED BY THE INSPECTING
ASSISTANT COMMISSIONER, MALAPPURAM.
EXHIBIT P5 TRUE COPY OF THE ORDER OF SALES TAX
APPELLATE TRIBUNAL DATED 04/11/2019 WITH
RESPECT TO KVAT REVISION PETITION
NO.140/2016.
EXHIBIT P6 TRUE COPY OF THE ORDER OF SALES TAX
APPELLATE TRIBUNAL DATED 04/11/2019 WITH
RESPECT TO KVAT REVISION PETITION
NO.132/2016.
EXHIBIT P7 TRUE COPY OF THE REVENUE RECOVERY NOTICE
DATED 10/02/2020.
EXHIBIT P8 TRUE COPY OF REVENUE RECOVERY NOTICE DATED
11/02/2020.
EXHIBIT P9 TRUE COPY OF THE CIRCULAR NO.CT/I/2020-C1
DATED 04/04/2020 ISSUED BY THE 2ND
RESPONDENT.
EXHIBIT P10 TRUE COPY OF THE ONLINE APPLICATION DATED
03/07/2020 SUBMITTED BY THE PETITIONER.