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TMI Blog2014 (6) TMI 828X X X X Extracts X X X X X X X X Extracts X X X X ..... get speech, 2010, letting it known to all concerned that, similar benefit as announced in the 2008 Scheme, would be implemented with effect from April 1, 2010 till June 30, 2010, enabling the defaulters to clear the liability by availing of the benefit of the scheme. True copy of the relevant portion of the Budget Speech as above is produced as exhibit P1. Immediately on coming to know about the declaration made by the Finance Minister in the budget speech, the petitioner volunteered to avail of the benefit of the said scheme, which in fact, was to be applied for and obtained after notification of the scheme with effect from April 1, 2010. A specific request was made before the second respondent, as borne by exhibit P2 dated March 20, 2010 (with reference to the contents of paragraph "205" of the budget speech, whereby the scheme was announced), requesting to keep the revenue recovery proceedings in abeyance till proper application is filed under the scheme and orders are passed by the assessing authority thereon. In token of willingness of the petitioner to pay the arrears under the Amnesty Scheme, a sum of Rs. 75,000 was also caused to be paid, which was requested to be adjuste ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... espondent/enforcing authority, while the application for considering the eligibility of the "Amnesty Scheme" was to be made before the first respondent/assessing authority. Two decisions are also brought to the notice of this court in support of the above contentions; the first one by a learned single judge of this court reported in ABY Engineers and Consultants (P) Ltd., Ernakulam v. Assistant Commissioner [2011] 38 VST 539 (Ker); [2009] 2 KLJ 228 and the other one by a Division Bench of this court in Writ Appeal No. (298 of 2010) (Assistant Commissioner (Assessment), Special Circle I, Ernakulam v. Martin and Harris Pvt. Ltd. [2011] 42 VST 496 (Ker)). With regard to the scope and applicability of the above verdicts, it is to be noted that, the rights and liberties of the Department to appropriate the payment is clearly dealt with under section 55C of the KGST Act, which is extracted below: "55C. Appropriation of payment.-(1) Where any tax or any other amount due or demanded under the Act is paid by any dealer or other person, the payments so made shall be appropriated first towards interest accrued on such tax or other amount under subsection (3) of section 23 on such date of pa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... After discussing the facts, circumstances and the relevant provisions of law, it was held that the circumstances contemplated under sections 59 and 60 of the Indian Contract Act were entirely different, which pre-supposes existence of several distinct debts and the debtor effects the payment with either express intimation or the circumstances showing that the payment is in discharge of some particular debt. In the light of the law declared by the apex court in Industrial Credit and Development Syndicate v. Smt. Smithaben H. Patel AIR 1999 SC 1036, holding that it cannot be said that principal and interest due on a single debt or decree passed on such debt carrying subsequent interest are to be treated as several and distinct debts. The above contention was fairly stated as not pressed by the learned counsel, which accordingly stands recorded in paragraph 5 of the said judgment. With regard to the other contentions, it was observed that, all payments were effected "after January 1, 2000" and this being the position, the mandate under sub-section (1) of section 55C has already taken in breath and hence the contentions raised from the part of the petitioner therein did not merit a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on for Amnesty Scheme was filed, observing that, the "time requirement" as specified under the scheme could not have been widened under any circumstances and further that, if the assessee succeeded in furtherance to the appeal, revision or rectification, the benefit could be claimed by way of refund of the tax paid under the "Amnesty Scheme" as provided under sub-section (7) of section 23B. Observing that, the scheme, statutory prescription and the time-frame were to be strictly followed, which could not have been extended by the learned single judge, interference was made, allowing the writ appeal filed by the Department in part, to the above extent. This decision is also not applicable to the case in hand, as the situation pointed out is not with regard to the extension of time-limit. Even if it is assumed for the sake of a moment, that the petitioner has not complied with the demand, as stipulated in exhibit P3 order granting the benefit of the scheme, the fact remains that the scheme itself, 1See [2011] 42 VST 492 (Ker). which was originally notified with effect from April 1, 2010 till June 30, 2010 has now been extended till September 30, 2010. As such, the said decision is no ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d not otherwise. To put it more clear, the benefit contemplated and sought to be given by the Government by virtue of the Amnesty Scheme as a matter of policy, specifying the manner of appropriation, rather stands on a different/higher pedestal, notwithstanding the manner of appropriation as provided under section 55C. The stand of the respondents as given in the opening line of paragraph 4 which reads as "the contention that the petitioner had paid the said amount in pursuance to exhibit P1 proposal cannot be countenanced since by the proposal itself it was abundantly clear that the same will be effective only from April 1, 2010" appears to be rather strange. This gives a message that the petitioner ought to have waited without contributing anything to the revenue, even as a measure of bona fides, till the notification of the scheme on April 1, 2010 or could have satisfied the liability availing of the benefit on the eve of the closure of the scheme, i.e., June 30, 2010. If the version of the respondents is to be accepted, it will lead to a very anomalous situation as follows: Take the case of a person who, on coming to know about exhibit P1 budget speech and the scheme proposed ..... X X X X Extracts X X X X X X X X Extracts X X X X
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