TMI Blog2014 (6) TMI 828X X X X Extracts X X X X X X X X Extracts X X X X ..... rate revenue in a better and effective manner, rather as a measure of "give and take" policy. The success of the scheme notified earlier, with regard to the revenue collection, the factual circumstance that the several persons could not make use of the opportunity because of the time-limit and other adverse circumstances as given in exhibit P1 budget speech, etc., weighed much and the "Legislature" thought it fit to renotify the scheme, providing necessary provisions in the Finance Bill, 2010. Declaration of such scheme is purely a matter of "policy" of the Government. Once such a "policy" was declared and proclaimed to be given effect to from April 1, 2010, the first question that comes up for consideration is whether there could have been any further coercive proceedings under the Kerala Revenue Recovery Act from the part of the respondents, particularly the second respondent. The petitioner was very much at liberty to wait till April 1, 2010, filing necessary application to have his matter considered as to the eligibility and to have satisfied the liability without effecting any "pre-deposit" as done by him in the instant case. If the stand of the respondents is to be accept ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 adjusted against the sales tax and surcharge dues. In the meanwhile, the scheme was declared and the petitioner filed necessary application for availing of the benefit under the scheme and this was sanctioned as per exhibit P3 dated May 28, 2010 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pport 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 payment and the balance available shall be appropriated towards principal outstanding, notwithstanding any request to the contrary by the dealer or any person making such payments. (2) Notwithstanding anything contained in sub-secti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tence 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 any consideration. Referring to the contents of sub-section (2), it was observed that, by virtue of necessary implication, even prior to section 55C, if any payment was made, it was certainly open to the officer to have it ad ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 not liable to be considered as a binding precedent to the issue in hand. With regard to the merits involved in the present case, it is an admitted fact that the budget proposal was made as to the introduction of the A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 and announced to be effective from April 1, 2010, voluntarily comes forward expressing that he is intending to avail of the benefit of the scheme and effects a portion of the liability seeking to have it set off ..... X X X X Extracts X X X X X X X X Extracts X X X X
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