ACC Limited (Formerly The Associated Cement Co. Ltd.) v. Assistant Commissioner (KVAT), Special Circle, Kannur & State of Kerala

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE V.CHITAMBARESH FRIDAY, THE 4TH DAY OF OCTOBER 2013/12TH ASWINA, 1935 WP(C).No. 4808 of 2010 (A) --------------------------- PETITIONER(S): ----------------- ACC LIMITED, (FORMERLY THE ASSOCIATED CEMENT CO.LTD.), KAMRAJ ROAD RED FIELDS, COIMBATORE HAVING ITS PLACE OF BUSINESS AT THIRUVANGAD, THALASSERY REPRESENTED BY ITS JOINT MANAGER (ACCOUNTS) BY ADVS.SRI.JOSEPH VELLAPPALLY (SR.) SRI.A.K.JAYASANKARAN NAMBIAR (SR.) SRI.RAMESH CHERIAN JOHN RESPONDENT(S): ------------------ ## 1. THE ASSISTANT COMMISSIONER (KVAT) SPECIAL CIRCLE, KANNUR. ## 2. STATE OF KERALA REPRESENTED BY THE COMMISSIONER OF COMMERCIAL TAXES THIRUVANANTHAPURAM. R, BY ADV. GOVERNMENT PLEADER SRI.GEORGE MECHERIL. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 04-10-2013, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## **APPENDIX IN W.P.(C) No. 4808 OF 2010** ## **PETITIONER(S) EXHIBITS** - EXHIBIT P1 : TRUE COPY OF THE PROVISIONAL ASSESSMENT ORDER DATED 7.7.1999. - EXHIBIT P2 : TRUE COPY OF THE JUDGMENT IN O.P.NO.20762 OF 1999 DATED 18.7.2006. - EXHIBIT P3 : TRUE COPY OF THE STAY ORDER PASSED BY THE DEPUTY COMMISSIONER (APPEALS) DATED 29.9.2006. - EXHIBIT P4 : TRUE COPY OF THE PROOF OF PAYMENT. EXHIBIT P5 : TRUE COPY OF THE STAY ORDER PASSED BY THE TRIBUNAL. EXHIBIT P6 : TRUE COPY OF THE LETTER DATED 12.4.2007. EXHIBIT P7 : TRUE COPY OF THE FINAL ORDER OF ASSESSMENT. EXHIBIT P8 : TRUE COPY OF THE RELEVANT PARAGRAPH OF BUDGET SPEECH. - EXHIBIT P9 : TRUE COPY OF THE PROVISIONS OF SECTION 23B EXHIBIT P10 : TRUE COPY OF THE CIRCULAR NO.13/2008. EXHIBIT P11 : TRUE COPY OF THE NOTIFICATION . EXHIBIT P12 : TRUE COPY OF THE APPLICATION IN ANNEXURE-I EXHIBIT P13 : TRUE COPY OF THE INTIMATION IN ANNEXURE-II - EXHIBIT P14 : TRUE COPY OF THE LETTER DATED 16.7.2009 FILED BY THE PETITIONER. - EXHIBIT P15 : TRUE COPY OF THE LETTER DATED 18.7.2009 ISSUED BY THE FIRST RESPONDENT. - EXHIBIT P16 : TRUE COPY OF THE NOTICE DATED 5.8.2009 ISSUED BY THE FIRST RESPONDENT. - EXHIBIT P17 : TRUE COPY OF THE LETTER DATED 21.8.2009 ISSUED BY THE FIRST RESPONDENT. - EXHIBIT P18 : TRUE COPY OF THE LETTER DATED 18.7.2009 ISSUED BY THE FIRST RESPONDENT. WP.(C)No.4808/2010 : 2 : EXHIBIT P19 : TRUE COPY OF THE LETTER FILED BEFORE THE FIRST RESPONDENT AT THE TIME OF PAYMENT OF INSTALMENTS UNDER THE AMNESTY SCHEME. EXHIBIT P20 : TRUE COPY OF THE LETTER FILED BEFORE THE FIRST RESPONDENT AT THE TIME OF PAYMENT OF INSTALMENTS UNDER THE AMNESTY SCHEME. EXHIBIT P21 : TRUE COPY OF THE LETTER FILED BEFORE THE FIRST RESPONDENT AT THE TIME OF PAYMENT OF INSTALMENTS UNDER THE AMNESTY SCHEME. ## **RESPONDENT(S) EXHIBITS** NIL. //TRUE COPY// P.S. TO JUDGE. **“C.R.”** ## **V.CHITAMBARESH, J.** ------------------------------- ## **WP(C) No. 4808 of 2010** ------------------------------- ## **Dated this the 4[th] day of October, 2013** ## **J U D G M E N T** The following questions arise for consideration in this writ petition:- - i) Does the principle of appropriation of payment under Section 55 C of the Kerala General Sales Tax Act, 1963 ('the Act' for short) apply when amounts are deposited 'on account' pursuant to orders of the appellate authority ? - ii) Is the final quantification of the amount (after appropriation) for settlement as per the provisions of the Amnesty Scheme under the Act open to challenge after payment by the assessee under Article 226 of the Constitution of India ? 2. The petitioner is a Company engaged in the business of manufacture and sale of cement and is a dealer registered under the Act on the rolls of the first respondent and the relevant assessment year is 1998-99. The dispute arose in the appropriation of a sum of `.2,00,00,000/- deposited pending W.P (C) No.4808/2010 2 appeal before the Deputy Commissioner (Appeals) and a sum of `.1,80,99,000/- deposited pending appeal before the Kerala Sales Tax Appellate Tribunal by the petitioner. The petitioner contended that the amounts should be appropriated towards the component of tax in quantifying the amount for settlement as per the Amnesty Scheme under the Act. The first respondent maintained that the amounts deposited by the petitioner could be appropriated only towards interest accrued on the tax under Section 55 C of the Act. The respondents objected to the very maintainability of the writ petition urging inter alia that the order passed as per the Amnesty Scheme under Section 23 B of the Act is not open to judicial review. The petitioner sought to quash Exts.P13, P15 and P18 orders of the first respondent quantifying the amount for settlement as per the Amnesty Scheme and to refund the excess amount collected. 3. I heard Mr.Jayasankar Nambiar.A.K., Senior Advocate as well as Mr.Ramesh Cherian John, Advocate on behalf of the petitioner and Mr.George Mecharil, Government Pleader on behalf of the respondents. W.P (C) No.4808/2010 3 4. The specific directions contained in the conditional orders of stay passed in the appeals before the Deputy Commissioner (Appeals) and the Kerala Sales Tax Appellate Tribunal as well as the terms of deposit are apposite. Ext.P3 order of stay was passed by the Deputy Commissioner (Appeals) under Section 34 (5) of the Act and the operative part of the same reads as follows:- “ - The payment of balance tax, sur charge and interest due is stayed till the disposal of appeal on condition that the petitioner remits Rs.2,00,00,000/- for 1998-99 and Rs.5,00,000/for 1999-2000 and furnishes security for the balance amount to the satisfaction of the assessing authority within a period of one month from the date of this order.” (emphasis supplied) Similarly Ext.P5 order of stay was passed by the Kerala Sales Tax Appellate Tribunal under Section 39(6) of the Act and the operative part of the same reads as follows:- “Upon hearing both sides and also considering the averments in the affidavits filed in support of these petitions, we are of the view that it will W.P (C) No.4808/2010 4 be just and proper to grant stay as prayed for by the petitioner for both the assessment years on condition that he shall pay 50% (fifty) of the balance disputed tax for each of the assessment years within a period of one month from today and shall also furnish security for the balance amount due from him. The stay shall remain in force for a period of six months from the date of order. “ (emphasis supplied) The petitioner complied with Exts.P3 and P5 conditional orders of stay in time and the terms of deposit made for the purpose of settlement as per the Amnesty Scheme under the Act for the assessment year 1998-99 alone is germane. 5. Ext.P3 order did not apportion the payment to be made towards the components of tax, sur-charge or interest whereas Ext.P5 order specifically set apart the payment to be made towards 50% of the balance disputed tax. The remittance of `.2,00,00,000/- made by the petitioner pursuant to Ext.P3 order can only be an 'open payment' [See **CIT v. Chidambaram Chettiyar** (1971 (1) SCC 417)]. Such open payments made are definitely to be appropriated first towards interest accrued on W.P (C) No.4808/2010 5 such tax and the balance towards principal applying the provisions of Section 55 C of the Act. The principles of appropriation under Section 55 C of the Act have been detailed in **Aby Engineers and Consultants (P) Ltd., Ernakulam v. The Assistant Commissioner** [2009 (2) KLJ 228]. But the remittance of `.1,80,99,000/- made by the petitioner pursuant to Ext.P5 order can only be a deposit 'on account' pending adjudication and without prejudice. I am fortified in this view by the decisions in **Ideal Trading Company v. Sales Tax Officer and another** [(2010) 18 KTR 106 (Ker)(FB)] and **Mangilal S.Jain's case** about which reference shall be made later. There is no warrant for not appropriating the sum of `.1,80,99,000/towards the component of tax even though the same was deposited 'on account' involuntarily in obedience to specific orders. 6. The respondents asserted that whatever remittances made by the petitioner irrespective of the term of deposit could be appropriated first towards interest and then only towards principal under Section 55 C of the Act. Reliance W.P (C) No.4808/2010 6 was placed on the decisions in **Joseph v. State of Kerala** [(2000) 3 KLT 377] and **James K. Joseph and others v. State of Kerala and others** [WP (C) No.33399/2010]. Both the cases dealt with remittance made under the Abkari Act and not under the Act and there was also dearth of material as regards the terms of deposit in the former case. The latter case dealt with an open payment only subject to appropriation in the final judgment in a writ petition and was not a deposit on account pursuant to specific orders. A deposit 'on account' pursuant to specific orders is quite different from 'an open payment' which alone could be appropriated applying the principles under Section 55 C of the Act. The sum of `.1,80,99,000/- remitted by the petitioner if appropriated towards the component of tax will have a huge impact on the amount to be settled as per the Amnesty Scheme. This is because there will be a reduction of 95% of the interest on the tax amount in the case of the demand relating to the assessment year in question as per the Amnesty Scheme under Section 23 B(1)(c) of the Act. 7. The further question to be answered is as to W.P (C) No.4808/2010 7 whether the quantification of the amount for settlement as per the Amnesty Scheme under the Act can be challenged by the petitioner and that too after payment. The series of correspondence exchanged between the petitioner and the first respondent evidenced by Exts.P13 to Ext.P21 letters demonstrate that the payments were made under protest. The payments were made by the petitioner in instalments on 20.8.2009, 19.9.2009, 19.10.2009 and 17.11.2009 for fear of the time being run out and the benefit lost thereby. The quantification of the amount for settlement as per the Amnesty Scheme under the Act is open to judicial review under Article 226 of the Constitution of India. The petitioner can certainly work out its rights within the four corners of the Amnesty Scheme and the only embargo is that it cannot take advantage of subsequent judicial pronouncements or departmental orders. Similarly the respondents cannot resile from the settlement and claim the amounts waived under the Amnesty Scheme by initiation of fresh proceedings and there is no total bar for entertainment of a writ petition for limited reliefs. The law in W.P (C) No.4808/2010 8 this regard is well laid down in the following decisions which ofcourse dealt with cases under the Kar Vivad Samadhan Scheme, 1998 in regard to settlement of tax dues: - i) **Mangilal S.Jain v. Commissioner of Income Tax and another** [(2002) 257 ITR 31] - ii) **Marigold Engineers (P) Ltd. v. Union of India and others** [(2004) 191 CTR 103] - iii) **Electric Lamp Manufacturers (India) Ltd. v. Commissioner of Central Excise, Kolkatta** [2010 (261) ELT 66 (Cal)] I therefore over rule the objection of the respondents as regards the maintainability of the writ petition or the grant of reliefs thereunder taking note of the limited nature of relief sought for by the petitioner. 8. Resultantly the prayer of the petitioner for appropriation of the remittance made pursuant to Ext.P3 order towards the component of tax is disallowed holding that the same was an 'open payment'. The prayer of the petitioner for appropriation of the remittance made pursuant to Ext.P5 order W.P (C) No.4808/2010 9 towards the component of tax is allowed holding that the same was a deposit made 'on account' . Exts.P13, P15 and P18 orders are quashed to the above extent and the first respondent is directed to recompute the amount payable by the petitioner as per the Amnesty Scheme under the Act. Consequential orders shall be passed by the first respondent with notice to the petitioner within a period of three months from the date of receipt of a certified copy of this judgment. The Writ Petition is allowed in part. No costs. **V.CHITAMBARESH, Judge.** nj.