M/S. Sandrose Global Merchandise ... vs The Deputy/Assistant ...
2021 Latest Caselaw 11287 Ker

               IN THE HIGH COURT OF KERALA AT ERNAKULAM

                               PRESENT

                 THE HONOURABLE MR. JUSTICE A.M.BADAR

    THURSDAY, THE 08TH DAY OF APRIL 2021 / 18TH CHAITHRA, 1943

                       WP(C).No.8904 OF 2021(K)


PETITIONER:

               M/S. SANDROSE GLOBAL MERCHANDISE (P) LTD.,
               AKASH BUILDING,PULAMON.P.O,KOTTARAKKARA,
               REPRESENTED BY SUBHASH SOMAN,
               MANAGING DIRECTOR.

               BY ADVS.
               SRI.HARISANKAR V. MENON
               SMT.MEERA V.MENON

RESPONDENTS:

      1        THE DEPUTY/ASSISTANT COMMISSIONER (ASSESSMENT),
               SPECIAL CIRCLE, STATE GOODS AND SERVICES TAX
               DEPARTMENT, KOTTARAKKARA, KOLLAM-691506.

      2        STATE OF KERALA,
               REPRESENTED BY ITS SECRETARY,
               TAXES DEPARTMENT, GOVERNMENT SECRETARIAT,
               THIRUVANANTHAPURAM-695001.


OTHER PRESENT:

               SMT.THUSHARA JAMES, GOVT. PLEADER


     THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON
08.04.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 W.P.(C) No.8904/2021              2


                            JUDGMENT

Dated this the 8th day of April 2021

Heard learned counsel for the petitioner so also the learned

Government Pleader appearing for respondents.

2. The petitioner is an assessee under the Kerala Value

Added Tax Act, 2003 (KVAT Act, for short) as well as Central Sales

Tax Act, 1956 (CST Act, for short). The assessment orders for the

years 2006-2007 as well as 2007-2008 under the KVAT Act passed

by the assessing officer were questioned by the petitioner by filing

appeals before the Tribunal. By the judgment and order at Ext.P2

dated 22.10.2019, the learned Kerala Value Added Tax/Agricultural

Income Tax & Sales Tax Appellate Tribunal was pleased to quash

the assessment orders for the years 2006-07 and 2007-08.

Similarly, the assessment orders for the years 2013-14 and

2016-17 under the KVAT Act passed by the assessing officer came

to be challenged by the petitioner before the concerned Tribunal

and by the judgment and order dated 14.10.2019, the learned

Tribunal was pleased to quash and set aside the assessment orders

for those years. By virtue of quashment of the assessment orders

by the learned Tribunal vide its judgments at Exts.P2, P3 and P4,

the petitioner claims that the petitioner is entitled for refund of the

amount of tax of Rs.36,66,960/- paid in excess by them for the

years 2006-07, 2007-08, 2013-14 and 2016-17.

3. The petitioner had claimed the benefit of payment of

arrears under the Amnesty Scheme 2020 by preferring

applications. So far as assessment orders for the years 2011-12,

2012-13, 2013-14, 2014-15, 2015-16 are concerned, by orders at

Exts.P5 and P5(a) (page Nos.45 and 46 of the paper book), the

petitioner was informed that the applications for claiming the

benefit of Amnesty Scheme 2020 are allowed. The petitioner was

accordingly directed to pay an amount of Rs.9,97,311/- if paid in

lumpsum or that of Rs.12,46,638/- if paid in instalments by

intimation at Ext.P5, whereas by intimation at Ext.P5(a), the

petitioner was informed to pay Rs.8,98,362/- if paid in lumpsum or

that of Rs.11,22,952/- if paid in instalments. The petitioner claims

that the petitioner has already paid excess amount of tax to the

tune of Rs.36,66,960/- though the petitioner was not liable for the

same in pursuant to the judgment and order of the learned

Tribunal at Exts.P2, P3 and P4 and therefore, the respondents

ought to have adjusted this excess amount paid by the petitioner

while ordering them to pay the amount as per the Amnesty

Scheme 2020 vide Exts.P5 and P5(a). Accordingly, the petitioner

has submitted a representation at Ext.P6 before the

1st respondent.

4. Learned counsel for the petitioner submits that in the light

of the judgments of this Court in Steel Exchange India Ltd vs.

Asst.Commissioner, Special Circle I & Ors reported in (2020)

28 KTR 397 (Ker.) and in Gandhi Sons vs. Assistant

Commissioner, Special Circle (Produce), Mattancherry and

another reported in (1994)95 STC 205 (Ker), the respondents

ought to have adjusted the amount which was liable to be

refunded to the petitioner towards the amount found payable

under the Amnesty Scheme.

5. Learned Government Pleader appearing for the

respondents opposed the writ petition by contending that the

amount payable under the Amnesty Scheme has nothing to do

with the amount if any which may be liable to be refunded to the

petitioner.

6. I have considered the submissions so advanced. The

issue involved in the instant writ petition regarding adjustment of

amount which is due and payable to the petitioner as assessee

towards their liability under the amount payable as per the

Amnesty Scheme is no more res integra. In the matter of Steel

Exchange India Ltd (supra), in paragraph 3, this Court has held

thus:

"On a consideration of the facts and circumstances of the case and the submissions made across the Bar, I find that, although it is the specific case of the learned Government Pleader that, under the Amnesty Scheme, there is no provision for an adjustment of refund amounts towards amounts found payable by an applicant seeking the benefit of Amnesty Scheme, the adjustment in question does not in any manner offend the Amnesty Scheme or do violence to its language. As already noted, it is not in dispute that the petitioner has been found entitled to various amounts by way of refund by Ext.P2 series of orders. The department has not preferred any appeal against the said order so as to cast any doubt on the entitlement of the petitioner for the refund amount. In that scenario, when amounts are liable to be paid by the petitioner to the department for the purposes of getting the benefit of the Amnesty Scheme, an adjustment of the refund amounts due to the petitioner towards whatever amount is found payable by the petitioner, would not in any manner offend the terms of the Scheme because it is simply an adjustment towards

the payment to be made under the Scheme. I, therefore, allow the Writ Petition by directing the respondents to appropriate the amounts determined as payable by the petitioner under the Amnesty Scheme, from the amounts due to the petitioner by way of refund pursuant to Ext.P2 series of orders, and thereafter, release the balance amount of refund to the petitioner, expeditiously".

7. Similarly, in the matter of Gandhi Sons (supra), this

Court has relied on the judgment of the Hon'ble Supreme Court in

the matter of N.C Mukherjee and Co. vs. Union of India

reported in (1967) 1 SCWR 246 and held that the procedure to be

followed in cases where there are amounts due to, and from the

State is that the assessing authority must adjust the amount due

to the assessee and recover only the balance if any.

8. In this view of the matter, non adjustment of the amount

due and payable to the petitioner being assessee for the

assessment years 2006-07, 2007-08, 2013-14 and 2016-17

towards their liability under the Amnesty Scheme 2020 cannot be

justified. Therefore, the writ petition is disposed of with the

following directions:

The respondents to consider the representation at Ext.P6

made by the petitioner regarding adjustment of amount payable

to them within a period of two months from the date of this

judgment in the light of ratio of judgments of this Court in the

matter of Steel Exchange India Ltd (supra) and in Gandhi Sons

(supra).

Sd/-

A.M.BADAR

JUDGE

smp

APPENDIX PETITIONER'S EXHIBITS:

EXHIBIT P1 COPY OF ASSESSMENT ORDER ISSUED BY THE 1ST RESPONDENT FOR THE YEAR 2006-07

EXHIBIT P1(a) COPY OF ASSESSMENT ORDER ISSUED BY THE 1ST RESPONDENT FOR THE YEAR 2007-08

EXHIBIT P2 ORDER IS PASSED BY THE KERALA VALUE ADDED TAX/AFRL.INCOME TAX & SALES TAX APPELLATE TRIBUNAL,THIRUVANANTHAPURAM IN T.A.

(VAT)NOS.356/18,357/18 & 358/18.

EXHIBIT P3 COPY OF ORDER PASSED BY THE APPELLATE TRIBUNAL IN T.A.(VAT)NO.248/2019

EXHIBIT P4 COPY OF ORDER PASSED BY THE APPELLATE TRIBUNAL IN T.A.(VAT)NO.362/2018

EXHIBIT P5 COPY OF INTIMATION ISSUED BY THE 1ST RESPONDENT NO.AM3207200011203

EXHIBIT P5(a) COPY OF INTIMATION ISSUED BY THE 1ST RESPONDENT NO.AM3212200000243

EXHIBIT P6 COPY OF LETTER IS SUBMITTED BY THE PETITIONER BEFORE THE 1ST RESPONDENT.

RESPONDENTS' EXHIBITS: NIL.

True Copy

P.S to Judge

smp