Selvam Broilers (P) Ltd. v. Assistant Commissioner (Assessment), Commercial Taxes, Special Circle-III, Ernakulam; Deputy Commissioner of Commercial Taxes, Ernakulam; Inspecting Commissioner, Commercial Taxes, Ernakulam, Kochi-30

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN** **WEDNESDAY, THE 11TH DAY OF JUNE 2014/21ST JYAISHTA, 1936** ## **WP(C).No. 13636 of 2014 (D)** ## **----------------------------** ## **PETITIONER :** **--------------------------** **SELVAM BROILERS (P) LTD., SELVAM HOUSE, HILL PALACE ROAD, TRIPUNITHURA, REPRESENTED BY ITS MANAGER (ACCOUNTS) M.PERIYASWAMY.** **BY SRI.K.SRIKUMAR,SENIOR ADVOCATE ADVS. SRI.K.MANOJ CHANDRAN SRI.P.R.AJITHKUMAR** ## **RESPONDENT(S):** - **----------------------------** **1. THE ASSISTNAT COMMISSIONER (ASSMT), COMMERCIAL TAXES, SPECIAL CIRCLE-III, ERNAKULAM.** **2. THE DEPUTY COMMISSIONER OF COMMERCIAL TAXES, ERNAKULAM.** **3. THE INSPECTING COMMISSIONER,** - **COMMERCIAL TAXES, ERNAKULAM, KOCHI -30.** **R1 TO R3 BY SR GOVERNMENT PLEADER SMT. SHOBA ANNAMMA EAPEN** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 11-06-2014, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **sts** ## **WP(C).No. 13636 of 2014 (D)** **-----------------------------------------** ## **APPENDIX** ## **PETITIONER(S)' EXHIBITS** **-------------------------------------** - **EXHIBIT P1 COPY OF ASSESSMENT ORDER DATED 26/3/2014** - **EXHIBIT P2 COPY OF THE ORDER DATED 29/3/2014** - **EXHIBIT P3 COPY OF THE COVERING LETTER DATED 31/3/2014 FILED ALONG WITH THE PAYMENT** - **EXHIBIT P3(A) COPY OF THE COVERING LETTER DATED 31/3/2014 ISSUED FOR THE YEAR 2003-04** - **EXHIBIT P3(B) COPY OF THE COVERING LETTER DATED 31/3/2014 ISSUED FOR THE YEAR 2004-05** - **EXHIBIT P3(C) COPY OF THE BANK STATEMENT FROM 17/4/2014 TO 30/4/2014** - **EXHIBIT P4 COPY OF THE REVENUE RECOVERY NOTICE DATED 13/5/2014** - **EXHIBIT P5 COPY OF THE LETTER ISSUED TO THE IST RESPONDENT DATED 27/5/2014** - **EXHIBIT P6 COPY OF THE LETTER ISSUED TO THE 3RD RESPONDENT DATED 27/5/2014** ## **RESPONDENT(S)' EXHIBITS:** **NIL** ## **/TRUE COPY/** ## **P.A.TO.JUDGE** **sts** ## **K.VINOD CHANDRAN, J** - - - - - - - - - - - - - - - - - - - - W.P.(C).No. 13636 of 2014 - - - - - - - - - - - - - - - - Dated 11[th] June, 2014 - - - - - - - - - - - - - - - - - - - - - - - - **==> picture [37 x 11] intentionally omitted <==** ## **JUDGMENT** The petitioner is a dealer in live chicken aggrieved by the revocation of amnesty, granted for the years 2002-03 to 2004-05. The petitioner's contention is that the revocation was not notified as provided under sub-section (6) of Section 23 of the Kerala General Sales Tax Act, 1963. 2. The brief facts necessary for the disposal of the above writ petition are that the petitioner applied for amnesty for the years 2002-03 to 2004-05 as per Section 23B of the KGST Act. The same was granted and an amount of Rs.101,16,469/-, 107,62,756/- and 137,88,828/were due respectively for the said years. On looking at Ext.P2 order, it is evident that **WP(C).13636/14** 2 while the interest liability in each of these years was above Rs.1 Crore; as per the order on amnesty, petitioner could pay the principal amount along with interest of around Rs.12 Lakhs to 13 Lakhs; for each of the years, to satisfy the dues under the Scheme. 3. Petitioner admittedly, submitted cheques as evident from Exts.P3, P3(a) and P3(b). Two cheques bearing Nos.345853 and 345855 were presented at first in random, as can be expected of the Department which deals with innumerable such transactions. These two cheques were honoured; but all the other cheques were dishonoured. Petitioner's contention is that the said two cheques were, those given for two different assessment years and if the assessing Authority had proceeded to send the cheques for clearing, of the earlier years first, then, the petitioner's dues, at least, for the year 200203 would have been settled amicably. The **WP(C).13636/14** 3 contention obviously is raised on account of the fact that, despite issuing cheques for settlement as per the amnesty Scheme; the balance in the account, on which the cheques were drawn, was not sufficient to cover the entire amounts for all the years; as ordered under the Scheme. If that contention is accepted, then an assessee could very well say that the Assessing Officer ought to have first send the cheques of the year in which the amounts specified was highest, since the account had sufficient amount to clear that, and not of any year which had lesser dues. The contention is base, prosaic and legally un-sustainable. 4. Petitioner's contention is that on that date, 31.03.2014, there was available in the account of the petitioner, amounts which could have satisfied the amnesty Scheme for the year 2002-03 and not the other two years. In fact, when the Scheme provides for a last date for **WP(C).13636/14** 4 making payments, despite cheques being issued against the demand, it was the bounden duty of the assessee to ensure that the amounts, for which the cheques were issued, were retained in the petitioner's account; so as to satisfy the cheques issued for all the years. 5. It is to be noticed that, the petitioner had applied for amnesty in all the three years together which alone was possible under Section 23B. Orders were passed allowing the amnesty showing different amounts for different years. In fact, the cheques were submitted to the taxation authorities on 31.03.2014, the last date for depositing the amounts as per the Scheme. 6. Further more, the provision, Section 23B, speaks of settling arrears of tax due prior to 31.03.2005; and not piece-meal settlement for one single assessment year. What the Scheme did **WP(C).13636/14** 5 provide for is settlement of arrears due prior to 31.03.2005 and not for each or any of the assessment years. On default, the petitioner claims; what he was not entitled to as per Section 23B and could not have applied for. 7. Further contention made is, with respect to sub-section (6) of Section 23B, which mandates that the revocation order ought to be issued to the dealer. However, a notice would be an empty formality in the present circumstance and not a requirement too. It has to be noticed that the present contention of a hearing, is raised only in the context of the two cheques which were presented having been honoured and the amounts collected thereby having been appropriated towards the interest dues of the petitioner under Section 55C of the Act. Appropriation under Section 55C being a statutory mandate; is not a question to be addressed in a notice under sub-section (b) of **WP(C).13636/14** 6 Section 23B. 8. The Amnesty Scheme introduced by the Government, though for effectuating recovery of defaulted amounts; is in fact, on terms, a premium on default. The conditions hence, have to be strictly construed. There could be many instances when, during the period stipulated, or thereafter a revocation is effected of the order granting amnesty by the department; for which notice is mandatory. However, no hearing could be contemplated for revocation, on the default of the petitioner, to remit the amounts ordered. Or, as is the case herein, the default to maintain sufficient amounts to honour the cheques issued. Sub-section (5) of Section 23B deals with default in the installments granted and the notice under sub-section (6) is only for such revocation. Notice, on revocation as contemplated under Section (5) and (6) is only on the revenue resorting to such action. The **WP(C).13636/14** 7 default of the assessee to remit amounts on or before the last date stipulated, dis-entitles the assessee, without anything more from settling its arrears under the Scheme. Neither a notice nor a revocation order is contemplated on default made by the assessee to pay the amounts stipulated before the last date notified 9. The reasoning hence leads this Court to the irrefutable conclusion that there is absolutely no infirmity, in the Assessing Officer having declined the petitioner's continuance under the Amnesty Scheme which is a consequence of the petitioners default. The petitioner cannot claim any further eligibility under the Amnesty Scheme especially since the period is over, and there can definitely be no adjustment under one year and revocation in the others. **WP(C).13636/14** 8 10. The learned counsel for the petitioner relies on a decision of this Court reported in **Alwaye Sugar Agency (M/s) v. Commercial Tax Officer, Alwaye and Others (2010 (3) KHC 871).** This Court is of the opinion that the same is not applicable to the facts of the present case. The said decision was in the context of the dealer therein making a request for consideration under Section 23B, on the Scheme being mooted in the Budget speech and making payments, pending the notification. The Court declared the appropriation under Section 55C to be bad, on facts. More apposite would be the cited judgment in W.A.298 of 2010, wherein a Division Bench held that the statutory prescription under Section 23B and the time frame where to be strictly followed. 11. The Honourable Supreme Court in **Hemalatha Gargya v. Commissioner of Income Tax (AP) (2003 (9) SCC 510)** considered the **WP(C).13636/14** 9 implementation of a Voluntary Disclosure of Income Scheme, under the Income Tax Act which was held to be a departure from the general rule of payment of tax, before making a declaration of income. The exception carved out however mandates payment within the time provided under the Scheme. When benefit is claimed under such schemes, the assessee was held to be bound to comply strictly with the conditions and there was no scope for equittable considerations. **Union of India v. Nitdip Textile Processors (P) Ltd, and Another ( [2012] 1 SCC 226** also found a Kar Vivid Samadhan Scheme to be “a complete code in itself and statutory in character and exhaustive of matter dealt with therein” (sic). Though liberal construction was held to be the norm, it its implementation, extension beyond the conditions prescribed under the Scheme was found to be impermissible 12. The petitioner's claims are not valid 10 ## **WP(C).13636/14** under the provisions of Section 23B. This Court also concludes that the appropriation under Section 55C cannot in any manner be assailed, since that is a statutory compulsion, not open for debate or adjudication. In **Hemalatha Gargya** (supra) a payment beyond time was found to be liable to adjustment or entitled for refund as the law provides. Appropriation under Section 55C is what the law provides, herein. In the above circumstances, the writ petition stands dismissed. ## **Sd/-** ## **K.VINOD CHANDRAN, Judge** ## Mrcs //True Copy//