TMI Blog2013 (10) TMI 1357X X X X Extracts X X X X X X X X Extracts X X X X ..... nd Ramesh Cherian John for the petitioner. George Mecheril, Government Pleader, for the respondents. The following questions arise for consideration in this writ petition: (i) Does the principle of appropriation of payment under section 55C of the Kerala General Sales Tax Act, 1963 ( the Act , for short) apply when amounts are deposited 'on account' pursuant to orders of the appellate authority ? (ii) Is the final quantification of the amount (after appropriation) for settlement as per the provisions of the Amnesty Scheme under the Act open to challenge after payment by the assessee under article 226 of the Constitution of India ? The petitioner is a company engaged in the business of manufacture and sale of ceme ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Tax Appellate Tribunal as well as the terms of deposit are apposite. Exhibit P3 order of stay was passed by the Deputy Commissioner (Appeals) under section 34(5) of the Act and the operative part of the same reads as follows: The payment of balance tax, surcharge and interest due is stayed till the disposal of appeal on condition that the petitioner remits ₹ 2,00,00,000 for 1998-99 and ₹ 5,00,000 for 1999-2000 and furnishes security for the balance amount to the satisfaction of the assessing authority within a period of one month from the date of this order. (emphasis1 supplied) Similarly exhibit P5 order of stay was passed by the Kerala Sales Tax Appellate Tribunal under section 39(6) of the Act and the operative part ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nciples of appropriation under section 55C of the Act have been detailed in Aby Engineers and Consultants (P) Ltd., Ernakulam v. Assistant Commissioner [2011] 38 VST 539 (Ker); [2009] 2 KLJ 228. But the remittance of ₹ 1,80,99,000 made by the petitioner pursuant to exhibit P5 order can only be a deposit on account pending adjudication and without pre judice. I am fortified in this view by the decisions in Ideal Trading Company v. Sales Tax Officer [2010] 18 KTR 106 (Ker) [FB] and Mangilal S. Jain's case [2002] 257 ITR 31 (Karn) about which reference shall be made later. There is no warrant for not appropriating the sum of ₹ 1,80,99,000 towards the component of tax even though the same was deposited on account involuntari ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... can be challenged by the petitioner and that too after payment. The series of correspondence exchanged between the petitioner and the first respondent evidenced by exhibits P13 to exhibit P21 letters demonstrate that the payments were made under protest. The payments were made by the petitioner in instalments on August 20, 2009, September 19, 2009, October 19, 2009 and November 17, 2009 for fear of the time being run out and the benefit lost thereby. The quantification of the amount for settlement as per the Amnesty Scheme under the Act is open to judicial review under article 226 of the Constitution of India. The petitioner can certainly work out its rights within the four corners of the Amnesty Scheme and the only embargo is that it canno ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
