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2018 (7) TMI 1768 - HC - VAT and Sales TaxDemand of Interest - suo-moto revision u/s 35 of the Kerala General Sales Tax Act, 1963 - effect of provisions of section 55C, whether effective only from 01.01.2000 onwards? - appropriation of the amount paid by the petitioner towards the fictitious interest amount for which there was no demand - Whether the Tribunal was right in sustaining the order of the Deputy Commissioner passed in purported exercise of the power conferred under Section 35 of the KGST Act? Held that:- Section 55C of the KGST Act, though brought into statute on 01.01.2000, is applicable in so far as all the assessment years. The general principles in appropriating amounts paid, first towards the interest, and then the principal dues was adopted by a clarificatory amendment to the statute. It is also to be noticed that Section 55C specifically refers to the amounts due under the Act including the interest and appropriation of payment; which applies whenever the recovery is made after the amendment was introduced, without reference to the assessment years, whether it is prior or post - Thus, Section 55C applies to all payments made on or after 01.01.2000 irrespective of the year to which arrears of the tax and interest relates - decided against assessee. Applicability of Section 23(3) of the KGST Act - Held that:- When there has been no levy of interest made, at the time of assessment and as a result no demand raised, the liability for interest would not arise is the argument. Whether there is any liability for interest under Section 23(3) on the petitioner in the given situation with reference to the assessment year 1997- 1998 particularly in the light of the sequence of amendments brought to Section 23 by the legislature? - Held that:- Section 23(3) of the KGST Act also mandates that the interest due should be paid by the dealer or other person in the manner prescribed in addition to the amount due. Hence there is a definite obligation cast on the dealer, assessee or such other person to pay the amounts due even without a determination. This is not to say that the assessee cannot dispute the computation, but the levy remains unaltered and there could be a dispute raised only on the actual amounts levied. Time Limitation - whether the assessment being completed under Section 17 of the KGST Act, is it possible to re-open it after five years? - Held that:- The assessment was completed within the period of limitation provided under Section 17, in the year 2003; after Section 55C came into the statute. The assessee had filed appeals and later by Annexure D an order was passed giving effect to the modifications as made by the Appellate Tribunal. At that point, the levy of interest was not taken note of and the appropriation under Section 55C was not also applied - it was perfectly in order for the Deputy Commissioner to have invoked the jurisdiction under Section 35. Revision dismissed - decided against assessee.
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