POLSONS DISTILLERY v. STATE OF KERALA

orders. The petitioner challenged these assessment orders in appeals. Pending the appeal before the Commissioner, the recovery proceedings for realisation of tax etc were undertaken.

9. The petitioner filed writ petition before this court in W.P(C) No.27673/2006. The learned Single Judge dismissed the writ petition on

20.10.2006. Against the said judgment dated 20.10.2006 passed by the single judge, the petitioner filed writ appeal No.1973/2006. Pending the writ appeal, an interim order was passed by the learned Division Bench, directing the appellate authority to consider the appeals expeditioulsy and also provided that till the appeals were decided, the recovery proceedings against the petitioner should not be undertaken, subject to the petitioner remitting 50% of the tax amount exclusive of interest within a period of three weeks from the financial year 1989-1999 onwards. The appeals filed by the petitioner before the appellate authority against the assessment orders were dismissed by the appellate authority. Therefore, the petitioner filed second appeal before the Sales Tax Appellate Tribunal.

10.While the second appeals were pending before the appellate tribunal, by Finance Act, 2009, an Amnesty Scheme was introduced by the State Government to enable the assessee in arrears of tax to clear the dues WP(C) NO. 1291 OF 2021 6 with a relaxation in the liability to pay interest and penalty, subject to the fulfillment of terms and conditions of the Amnesty Scheme promulgated by the Finance Act, 2008.

11.In order to take the benefit of the Amnesty Scheme of 2008, the petitioner submitted their application before assessing authority for settlement of arrears of tax dues by the application dated 29.09.2008. The assessing authority calculated a sum of Rs.5,22,76,093/-, the amount payable by the petitioner under the Amnesty Scheme and required the petitioner to pay Rs.1,30,69,024/-, being 25% of the amount assessed under the Amnesty Scheme within a period of 15 days from the date of the order ie., 05.11.2008. The petitioner disputed the figure of Rs.5,22,76,093/- by a reply dated 17.11.2008. The assessing authority reworked the figures and calculated the sum payable under the Scheme at Rs. 4,46,86,793/-. The petitioner was of the opinion that the assessing authority did not give credit to the interest which should have been treated payment towards the tax and therefore the petitioner filed W.P(C) No. 12901/2009, disputing the order dated 09.02.2009 calculating the sum payable by the petitioner as Rs. 4,46,86,793/-. The learned Single Judge passed an interim order on

28.04.2009 provided that in the event of the petitioner depositing a sum of Rs. 2,47,98,006/- in four equal monthly instalments, the remaining arrears assessed under the Scheme would be kept in abeyance. According to the petitioner, the said amount of Rs. 2,47,98,006/- was remitted in four equal monthly instalments as per the interim order dated 28.04.2009. WP(C) NO. 1291 OF 2021 7

12. In the meantime, the tribunal had disposed of the second appeals against which the petitioner as well as the State filed tax revisions before this Court. The writ petition No. 12901/2009 as well as the tax revisions were clubbed together and same were disposed of by a common judgment dated 21.12.2009.

13. The Division Bench was of the opinion that the writ petition in substance was towards the adjustment of payments, first towards interest and balance towards tax in terms of Section 55C of the Act. So long as validity of Section 55C was not under challenge, it was only the question of adjustment of payment first towards the interest and balance towards the tax and the same was considered in the judgment of S.T Rev. No.89/2009.

14. After making the aforesaid observation, the writ petition was disposed of with direction to the assessing authority to adjust payment based on the judgment in the S.T Rev. No.89/2009.

15. Aggrieved by the said judgment of the Division Bench, the petitioner filed Special Leave Petition (Civil Appeal No. 8500/2010). The Supreme Court by the judgment dated 28.11.2013, permitted the petitioner to file a review petition in W.P(C) No. 12901/2009 before this Court within period of one month from the date of the order passed by the Supreme Court. The petitioner filed the review petition in pursuance to the liberty granted by the Supreme Court, seeking review of the judgment passed in W.P(C) No. 12901/2009, being Review Petition No. 174/2014. Though the petitioner has filed a memo to withdraw this review petition, however, the WP(C) NO. 1291 OF 2021 8 review petition has not been dismissed as withdrawn, and is still pending on the files of the High Court.

16.The assessing authority initiated the recovery proceedings for arrears of tax for balance of Rs. 2,47,98,006/-. The petitioner approached this court by filing W.P(C) No. 16278/2014 in which an interim order dated

20.10.2014 was granted and the same got extended from time to time.

17.In the meantime, as per the direction issued by the tribunal in the second appeal, the original assessment orders were modified by the assessing authority by separate orders dated 06.07.2012 for the assessment year 1989-1999 to 2004-2005. An assessment order for the assessment year 2015-2016 was finalized on 05.03.2020 and as per the assessment order, the total liability of the petitioner was Rs. 77,64,344/- which would include Rs.52,81,867/- as tax and Rs.24,82,477/- as interest.

18.The Government thereafter had come out with the new Amnesty Scheme as mentioned above on 11.09.2020 by the Kerala Finance Act,

2020. The petitioner in order to take the benefit of the new Scheme, put up an application in Ext.P14. According to the petitioner only Rs. 7,98,253/- was the balance amount payable by the petitioner in respect of the financial year 1998-1999 to 2004-2005 and 2015-2016.

19. On 21.11.2012, the Assistant Commissioner (assessment), Commercial Taxes Special circle, Thrissur, had issued a certificate which would disclose that the assessee had made payment of Rs. 4,88,54,614/- towards the Turn Over Tax and interest for the years 1998-1999, 2004-2005 WP(C) NO. 1291 OF 2021 9 and the said chart would also disclose that as on 06.07.2012, no amount was payable in respect of the financial year 1998 -1999 and in respect of the financial year 1999 – 2000, the amount of tax and interest of Rs.3,26,233/- was payable. The petitioner had settled the tax liability including the interest amount for the financial year 2001-2002 under the Scheme of 2009, and in respect of the financial year 2002-2003 , 2003-2004 & 2004-2005, nothing was payable by the petitioner as the petitioner has discharged the said liability. Thus, on the date of filing the application under new scheme of 2020, the liability only in respect of the financial year, 1999 – 2000 for Rs. 3,26,233/- and for liability of tax, interest etc., the assessment year 2015-16 were outstanding against the petitioner. Thus the petitioner’s liability for 1999-2000 and 2015-16 were only the subject matter of the application under the new scheme of 2020.

20.The petitioner, however, has claimed that the earlier amount remitted by the petitioner in respect of all the assessment years up to 2004- 2005 which would include interest as well should be treated as the amount paid by him under the new scheme. In fact the petitioner wants that the concluded assessments in respect of the earlier assessment years under the old scheme should be reopened. I am of the considered view that this is not the scope of the new scheme.

21.The learned Counsel for the petitioner however submits that the petitioner had not accepted the settlement under the old scheme. He had filed the writ petition challenging the settlement arrived by the old scheme WP(C) NO. 1291 OF 2021 10 and in pursuance to the liberty granted by the Supreme Court, he had filed the review petition seeking review of the Judgment and Order dated

21.12.2009 and, therefore, the dispute was pending. This situation is taken care of in the new scheme as well.

22.On the other hand, Mr. Muhammed Rafiq A., learned Special Government Pleader has submitted that once the petitioner has settled liability in compliance of the order passed in the earlier scheme and, the matter has attained finality, the filing of the review would not empower the assessing authority to reopen the assessment in respect of the assessment year for which there was no liability of the assessee pending to be discharged by the assessee. He therefore, submits that the assessing authority has taken the correct view in passing Exhibit P-17 order. If the petitioner is not satisfied with the order passed under Amnesty scheme, the petitioner may go for the normal assessment.

23.I find substance in the submission of the learned Special Government Pleader, Mr. Muhammed Rafiq A. On the date of the application, only those liabilities can be taken into account which are pending against an assessee. Liabilities which are already settled for the previous assessment years cannot be taken into consideration for applying the Amnesty Scheme of 2020. In view thereof, I find that the assessing authority while passing the impugned order has not committed any error of jurisdiction or law which requires this Court to interfere with the impugned order in Exhibit P-17. WP(C) NO. 1291 OF 2021 11

24.The petitioner has challenged the said order immediately before this Court, and this Court on 18.01.2021 granted the interim order. As the writ petition has remained pending, I am of the view that the petitioner should not be settled with interest, liability on the sum arrived at by the assessing authority in Exhibit P17 for making the payment with delay. Therefore, the petitioner is permitted to remit the amount of Rs. 89,93,467/- within thirty days from today.

25. Any amount in pursuance to the interim order should be given credit to the petitioner for making payment of remaining amount as per Exhibit P17 order. With aforesaid observations and directions the present writ petition is closed. SJ/Svn Sd/- DINESH KUMAR SINGH JUDGE WP(C) NO. 1291 OF 2021 12 APPENDIX OF WP(C) 1291/2021 PETITIONER EXHIBITS EXHIBIT P1 EXHIBIT P2 EXHIBIT P2 (A) EXHIBIT P2 (B) EXHIBIT P2 (C) EXHIBIT P2 (D) EXHIBIT P2 (E) EXHIBIT P2 (F) EXHIBIT P3 EXHIBIT P3 (A) EXHIBIT P4 EXHIBIT P5 EXHIBIT P6 EXHIBIT P7 EXHIBIT P7 (A) TRUE COPY OF THE RELEVANT EXTRACT OF THE KERALA FINANCE ACT, 2020 TRUE COPY OF THE ASSESSMENT ORDER ASSISTANT COMMISSIONER (ASSESSMENT), SPECIAL CIRCLE, TRICHUR FOR AY-1998-1999 TRUE COPY OF THE ASSESSMENT ORDER ASSISTANT COMMISSIONER (ASSESSMENT), SPECIAL CIRCLE, TRICHUR FOR AY-199-2000 TRUE COPY OF THE ASSESSMENT ORDER ASSISTANT COMMISSIONER (ASSESSMENT), SPECIAL CIRCLE, TRICHUR FOR AY-2000-2001 TRUE COPY OF THE ASSESSMENT ORDER ASSISTANT COMMISSIONER (ASSESSMENT), SPECIAL CIRCLE, TRICHUR FOR AY-2001-2002 TRUE COPY OF THE ASSESSMENT ORDER ASSISTANT COMMISSIONER (ASSESSMENT), SPECIAL CIRCLE, TRICHUR FOR AY-2002-2003 TRUE COPY OF THE ASSESSMENT ORDER ASSISTANT COMMISSIONER (ASSESSMENT), SPECIAL CIRCLE, TRICHUR FOR AY-2003-2004 TRUE COPY OF THE ASSESSMENT ORDER ASSISTANT COMMISSIONER (ASSESSMENT), SPECIAL CIRCLE, TRICHUR FOR AY-2004-2005 TRUE COPY OF THE JUDGMENT IN W.A. NO.1973/2006 BEFORE THIS HON'BLE COURT TRUE COPY OF THE CERTIFICATE ISSUED BY THE ASSISTANT COMMISSIONER (ASSESSMENT), SPECIAL CIRCLE, TRICHUR TRUE COPY OF THE AMNESTY APPLICATION SUBMITTED BY THE PETITIONER ALONG WITH TRUE ENGLISH TRANSLATION TRUE COPY OF THE COMMUNICATION ISSUED BY THE ASSISTANT COMMISSIONER (ASSESSMENT), SPECIAL CIRCLE, THRISSUR TRUE COPY OF THE REPLY GIVEN BY THE PETITIONERS TRUE COPY OF THE COVERING LETTER OF THE ASSISTANT COMMISSIONER (ASSESSMENT), SPECIAL CIRCLE, THRISSUR TRUE COPY OF THE REVISED INTIMATION ISSUED WP(C) NO. 1291 OF 2021 13 EXHIBIT P7 (B) EXHIBIT P8 EXHIBIT P9 EXHIBIT P10 EXHIBIT P10 (A) EXHIBIT P11 EXHIBIT P11 (A) EXHIBIT P11 (B) EXHIBIT P11 (C) EXHIBIT P11 (D) EXHIBIT P11 (E) EXHIBIT P11 (F) EXHIBIT P12 EXHIBIT P13 EXHIBIT P14 EXHIBIT P15 EXHIBIT P16 EXHIBIT P16 (A) EXHIBIT P17 BY THE ASSISTANT COMMISSIONER (ASSESSMENT), SPECIAL CIRCLE, THRISSUR TRUE COPY OF THE ORDER OF THE ASSISTANT COMMISSIONER (ASSESSMENT), SPECIAL CIRCLE, THRISSUR TRUE COPY OF THE JUDGMENT OF THE HON'BLE SUPREME COURT IN CIVIL APPEAL NO.8500/2010 TRUE COPY OF THE INTERIM ORDER PASSED BY THIS HON'BLE COURT IN W.P.(C).16278/2014 TRUE COPY OF THE COMMUNICATION OF THE ASSISTANT COMMISSIONER (ASSESSMENT), SPECIAL CIRCLE, THRISSUR TRUE COPY OF THE COMMUNICATION GIVEN BY THE ASST. COMMISSIONER TO THE JOINT COMMISSIONER, THIRUVANANTHAPURAM TRUE COPY OF THE MODIFIED ASSESSMENT ORDER (AY-1998-1999) TRUE COPY OF THE MODIFIED ASSESSMENT ORDER (AY-199-2000) TRUE COPY OF THE MODIFIED ASSESSMENT ORDER (AY-2000-2001) TRUE COPY OF THE MODIFIED ASSESSMENT ORDER (AY-2001-2002) TRUE COPY OF THE MODIFIED ASSESSMENT ORDER (AY-2002-2003) TRUE COPY OF THE MODIFIED ASSESSMENT ORDER (AY-2003-2004) TRUE COPY OF THE MODIFIED ASSESSMENT ORDER (AY-2004-2005) TRUE COPY OF THE CERTIFICATE ISSUED BY THE ASSISTANT COMMISSIONER, (ASSESSMENT), SPECIAL CIRCLE, THRISSUR TRUE COPY OF THE ASSESSMENT ORDER PERTAINING TO THE YEAR 2015-2016 TRUE COPY OF THE AMNESTY APPLICATION FILED BY THE PETITIONER BEFORE THE 2ND RESPONDENT TRUE COPY OF THE NOTICE ISSUED BY THE 2ND RESPONDENT TRUE COPY OF THE EXPLANATION GIVEN BY THE PETITIONER TO THE 2ND RESPONDENT TRUE COPY OF THE CALCULATION STATEMENT ANNEXED TO EXT. P16 TRUE COPY OF THE AMNESTY INTIMATION GIVEN BY THE 2ND RESPONDENT