S. Vijayan v. Commissioner of State Goods and Services Taxes Department and Others

“CR” IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR. JUSTICE DINESH KUMAR SINGH MONDAY, THE 26[TH] DAY OF FEBRUARY 2024 / 7TH PHALGUNA, 1945 WP(C) NO. 3661 OF 2022 ## PETITIONER/S: S. VIJAYAN, AGED 59 YEARS, PROPRIETOR, POOJA CASHEW FACTORY, ANTHICHIRA, THUVAYOOR NORTH, MANAKKALA P.O, ADOOR, PIN - 691551. BY ADV SERGI JOSEPH THOMAS ## RESPONDENT/S: - 1 COMMISSIONER OF STATE GOODS AND SERVICE TAXES DEPARTMENT, TAX TOWERS, KARAMANA, THIRUVANANTHAPURAM, PIN - 695002. - 2 THE ASSISTANT COMMISSIONER(ASSESSMENT) SPECIAL CIRCLE, SATTE GOODS AND SERVICE TAXES DEPARTMENT, KOLLAM, PIN - 691002, NOW RE-DESIGNATED AS DEPUTY COMMISSIONER OF STATE TAX, SPECIAL CIRCLE, STATE GOODS AND SERVICE TAXES DEPARTMENT, KOLLAM, PIN - 691002. - 3 THE DEPUTY TAHSILDAR(RR) TALUK OFFICE, ADOOR, PIN - 601623. - 4 THE VILLAGE OFFICER, ERATHU VILLAGE, ADOOR, PIN - 691551. ## OTHER PRESENT: JASMINE M.M.-GP THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 26.02.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: **W.P.(C) No.3661/2022** **-2-** ## J U D G M E N T The present writ petition has been filed questioning Ext.P6 series of Revenue Recovery notices issued to the petitioner under the Kerala Value Added Tax Act and Central Sales Tax Act for various Financial Years. 2. The petitioner is a registered dealer and an assessee under the provisions of the Kerala Value Added Tax Act, 2003, and the Rules made thereunder. The petitioner was in arrear of tax in respect of the Financial Years 2011-12, 2013-14, 201415 and 2016-17 under the Central Sales Tax Act and Financial Years 2007-08, 2011-12, 2012-13 and 2013-14 under the Kerala Value Added Tax Act, as mentioned in paragraphs 4 and 5 of the Memorandum of Writ Petition. 2.1 _Vide_ Finance Bill 2020, the Government of Kerala came out with an Amnesty Scheme 2020 for the settlement of tax arrears and issued Circular No.2 of 2020 dated 04.04.2020. As per the aforesaid Scheme, persons opting for the Amnesty **W.P.(C) No.3661/2022** **-3-** Scheme were required to pay only 40% of the tax amount demanded. The petitioner submitted an application on 29.11.2020 before the 2[nd] respondent under the Amnesty Scheme. _Vide_ Order dated 12.02.2021, the petitioner’s application under the Amnesty Scheme was considered, and the petitioner was directed to pay an amount of Rs.1,28,373/against the outstanding demand of Rs.3,20,930/-, being 40% of the total arrears for settlement. 2.2 The petitioner has not challenged the order dated 12.02.2021. It appears that the petitioner made a request on 10.03.2021 before the 2[nd] respondent requesting to adjust the amount of Rs.5 lakhs allegedly due to him against the amount settled under the Amnesty Scheme and the rest of the amount to be refunded to him. No action was taken on the said application, and the impugned Revenue Recovery notices have been issued to the petitioner, which is under challenge before this Court. ## **W.P.(C) No.3661/2022** **-4-** 3. The Amnesty Scheme does not contemplate adjustment of any amount which may be due to an assessee. If any amount is due to the assessee, he may take the appropriate course of action to recover the said amount from the Government. When the provisions of the Amnesty Scheme do not contemplate adjustment of the amount and no such request was made before the 2[nd] respondent before the passing of the order dated 12.02.2021 under the Amnesty Scheme, the petitioner cannot seek a modification of the said order by requesting to adjust any amount allegedly due to him from the Government. 4. Learned Counsel for the petitioner has placed reliance on the judgment of this Court in _M/s Steel Exchange India Ltd v. The Assistant Commissioner_[1] wherein, on the facts of that case, the adjustment of the amount due to the assessee under the Amnesty could not offend the provisions of the > 1 Judgment dated 24.07.2020 in W.P.(C) No.14031/2020 **W.P.(C) No.3661/2022** **-5-** Amnesty Scheme. The said judgment has been affirmed by the Division Bench of this Court in _The Assistant Commissioner v. M/s_ . _Steel Exchange India Ltd_[2] 5. Ms Jasmin M M learned Government Pleader, however, submits that the amount of Rs.5 lakhs has been credited to the petitioner’s account, and there is nothing due to the petitioner from the Government. It is further submitted that before passing the Order on the application of the petitioner, the petitioner never claimed that some amount was due to him. So, once the order is passed, the authority under the Amnesty Scheme becomes _functus officio_ and cannot modify the Order. 6. I agree with the submissions of the learned Government Pleader. Once an application under the Amnesty Scheme has been decided and an order has been passed, the authority becomes _functus officio_ to modify the said order. If > 2 Judgment dated 25.01.2021 in W.A. No.189/2021 ## **W.P.(C) No.3661/2022** **-6-** any amount was due to the petitioner, the petitioner could have taken recourse to appropriate remedy. I am of the considered view that the petitioner could not get a right to get the order passed under the Amnesty Scheme modified on the ground that some amount was due to the petitioner. I find no force in the writ petition; therefore, the same is dismissed. Sd/DINESH KUMAR SINGH JUDGE jjj **-7-** ## **W.P.(C) No.3661/2022** ## APPENDIX OF WP(C) 3661/2022 PETITIONER EXHIBITS - Exhibit P1 TRUE COPY OF THE ASSESSMENT ORDER DATED 21.11.2013 PASSED THE 2ND RESPONDENT IN RESPECT OF THE FINANCIAL YEAR 2009-2010. - Exhibit P1(a) - TRUE COPY OF THE ASSESSMENT ORDER DATED 21.11.2013 PASSED THE 2ND RESPONDENT IN RESPECT OF THE FINANCIAL YEAR 2010-2011. - Exhibit P2 TRUE COPY OF THE MODIFIED ORDER NO.32020267094/09-10 DATED 30.07.2019 PASSED THE 2ND RESPONDENT. - Exhibit P2(a) TRUE COPY OF THE MODIFIED ORDER NO.32020267094/10-11 DATED 30.07.2019 PASSED THE 2ND RESPONDENT. - Exhibit P3 TRUE COPY OF THE CIRCULAR NO. 2/2020 DATED 04.04.2020 ISSUED BY THE 1ST RESPONDENT. - Exhibit P4 TRUE COPY OF THE INTIMATION FOR PAYMENT OF ARREARS UNDER THE AMNESTY SCHEME 2020 DATED 12.02.2021 ISSUED BY THE 2ND RESPONDENT. - Exhibit P5 TRUE COPY OF THE REQUEST DATED 10.03.2021 SUBMITTED BY THE PETITIONER BEFORE THE 2ND RESPONDENT. - Exhibit P6 - TRUE COPY OF THE REVENUE RECOVERY NOTICE DATED 15.02.2019 ISSUED BY THE 3RD RESPONDENT. - Exhibit P6(a) - TRUE COPY OF THE REVENUE RECOVERY NOTICE DATED 16.03.2019 ISSUED BY THE 3RD RESPONDENT. - Exhibit P6(b) - TRUE COPY OF THE REVENUE RECOVERY NOTICE DATED 30.05.2019 ISSUED BY THE 3RD RESPONDENT. - Exhibit P6(c) TRUE COPY OF THE REVENUE RECOVERY NOTICE **-8-** ## **W.P.(C) No.3661/2022** DATED 28.06.2019 ISSUED BY THE 3RD RESPONDENT. Exhibit P6(d) Exhibit P6(e) Exhibit P6(f) Exhibit P6(g) Exhibit P6(h) Exhibit P7 TRUE COPY OF THE REVENUE RECOVERY NOTICE DATED 28.06.2019 ISSUED BY THE 3RD RESPONDENT. TRUE COPY OF THE REVENUE RECOVERY NOTICE DATED 11.11.2021 ISSUED BY THE 3RD RESPONDENT. TRUE COPY OF THE REVENUE RECOVERY NOTICE DATED 11.11.2021 ISSUED BY THE 3RD RESPONDENT. TRUE COPY OF THE REVENUE RECOVERY NOTICE DATED 11.11.2021 ISSUED BY THE 3RD RESPONDENT. TRUE COPY OF THE REVENUE RECOVERY NOTICE DATED 11.11.2021 ISSUED BY THE 3RD RESPONDENT. TRUE COPY OF THE REQUEST DATED 27.01.2022 SUBMITTED BY THE PETITIONER BEFORE THE 2ND RESPONDENT.