2015 (11) TMI 158
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....ls. The statutory first appellate authority passed a conditional order of stay directing the assessee to remit a sum of Rs. 2,00,00,000 (rupees two crores) as per exhibit P3. Admittedly, the assessee deposited the said amount and appeal was dismissed. Hence, the assessee carried the matter in second appeal before the Tribunal. The Tribunal also passed a conditional order of stay directing the assessee to remit Rs. 1,80,99,000 as per exhibit P5. The assessee deposited the amount towards tax for obtaining stay of recovery of the demand. The Tribunal cancelled the provisional assessment and opined that levy under section 5(2) of the Kerala General Sales Tax (KGST) Act was not sustainable. The Revenue filed revision (S. T.R. No. 76 of 2008) before this court. This court allowed the revision opining that levy under section 5(2) of the KGST Act is valid and directed the officer to complete final assessment. By that time, final assessment was already completed. The assessee approached the apex court by filing special leave petition against the decision of this court and the same is pending consideration." Meanwhile, in 2008, the State Government announced the amnesty scheme for settlemen....
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....tigation is over. Therefore, in the light of civil appeal pending before, the honourable Supreme Court, the Revenue has no right to appropriate the deposit towards interest. The assessee further contends that the provisos to sections 34(5) and 39(6) of the KGST Act refer to powers of appellate authorities to give directions in respect of pre-deposit pending appeals. Therefore, it can only be pre-deposit of tax. The assessee further contends that none of the provisions of the KGST Act shows that section 55C of the KGST Act overrides the provisions of sections 34 and 39, hence, pre-deposit amount cannot be appropriated towards interest under section 55C. They also contend that section 23B starts with non obstante clause and therefore, it overrides all other provisions of the KGST Act, therefore the very benefit provided under section 23B, if interpreted as advanced by the Revenue, becomes redundant. So far as section 23B of the KGST Act, there is no requirement that litigation shall remain pending as on the date of application under amnesty scheme. On the other hand, sub-section (7) of section 23B permits continuation of litigation even after settlement of demand. Placing reliance on....
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....arrears as on the date of provision coming into force, i.e., April 1, 2008; therefore, the amount "is in arrears" means the balance outstanding after appropriating payments made as per stay orders towards interest. 7. Certain dates and provisions of the Act are relevant in order to appreciate the genuineness of the claim made by the assessee. Admitted facts are provisional assessment order came to be passed by the Assistant Commissioner, Commercial Taxes on July 7, 1999. O.P. No. 20762 of 1999 came to be filed on August 11, 1999. Said writ petition was dismissed on July 18, 2006 opining that the assessee can invoke the alternate remedy by filing appeal before the Deputy Commissioner (Appeals). On August 16, 2006, appeal and stay petition bearing No. 823 of 2006 came to be filed challenging the provisional assessment order. On September 29, 2006 order of stay was granted subject to deposit of Rs. 2,00,00,000 which came to be deposited on October 28, 2006. On November 30, 2006 appeal was dismissed on merits upholding the provisional assessment order. On March 2, 2007, an appeal along with stay petition bearing No. 40 of 2007 came to be filed before the Kerala Sales Tax Appellate Tri....
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.... notice was issued by the Assistant Commissioner (KVAT) proposing to reject the amnesty application since the assessee failed to remit 25 per cent of the arrear amount within fifteen days. On August 19, 2009, personal hearing regarding pre-deposit was held. On August 21, 2009, another letter came to be filed before the Assistant Commissioner (KVAT) intimating that in terms of the directions issued, the assessee was making initial payment of Rs. 1,32,04,542 and sought for revision of schedule. On August 24, 2009, the Assistant Commissioner permitted the assessee to remit the balance amount under the amnesty scheme in three equal monthly installments. Accordingly by November 17, 2009, all installments came to be remitted. On December 28, 2009 S.T. Rev. No. 13 of 2010 came to be filed before this court against final assessment proceedings. On February 15, 2010, W.P. (C) No. 4808 of 2010 came to be filed before this court against the amnesty order. Meanwhile, the revision came to be disposed of. On July 4, 2009 an SLP came to be filed against the order of this court dated March 31, 2009 and the same was admitted on March 8, 2010. Again another SLP filed against the final order of this ....
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....l have the power to collect such amounts on settlement under sub-section (1) and where the amount is settled under sub-section (1) the assessing authorities shall withdraw the revenue recovery proceedings against such dealers which will then be binding on the Revenue Authorities and such dealers shall not be liable for payment of any collection charges. (3) A dealer who wishes to opt for payment of arrears under sub-section (1) shall make an application to the assessing authority in the prescribed form before June 30, 2008. (4) On receipt of an application under sub-section (3) the assessing authority shall work out the actual amount of tax and other amounts due from the dealer under sub-section (1) and shall intimate the amount to the dealer, and thereupon the dealer shall remit twenty five per cent of the amount within fifteen days of receipt of the intimation, and the balance amount in three equal monthly installments starting from the subsequent month. (5) If the dealer commits any default in payment of the installments the reduction granted under sub-section (1) is liable to be revoked. (6) No acti....
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....him in the manner prescribed, appeal against such order to the Appellate Tribunal:- (2) to (5)... (6) Notwithstanding that an appeal has been preferred under sub-section (1), the tax shall be paid in accordance with the order of assessment against which the appeal has been preferred:- Provided that the Appellate Tribunal may, in its discretion, give such directions as it thinks fit in regard to the payment of the tax before the disposal of the appeal, if the appellant furnishes sufficient security to its satisfaction in such form and in such manner as may be prescribed. 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 sub-section (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 per....
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....ders cannot be appropriated and assessed as income as the appropriation will happen only when litigation is finally determined. It is pointed out that there is a clear distinction between cases where right to receive payment is in dispute and where right to receive payment is admitted and only quantification levied is to be determined. In the case of Voltas Limited v. Union of India: [1999] 112 ELT 34 (Delhi), it was held that a pre-deposit pending appeal remains a deposit and is available for appropriation only on the final order being confirmed. In P.S.L. Ramanathan Chettiar v. O.R.M.P.R.M. Ramanathan Chettiar: AIR 1968 SC 1047, the apex court held that depositing a sum in court to purchase peace by way of stay of execution does not pass title to the money to the decree holder and subject to payment is not in satisfaction of the decree. In Sanjay Founders Pvt. Ltd. v. Commissioner of Central Excise, Pune-II: [2006] 195 ELT 120 (Trib.-Mum) it was held that a pre-deposit pending appeal remains a deposit and is available for appropriation only on the final order being confirmed. 13. As against this, State has placed reliance on several judgments. Reliance is placed on [2000] 3 KLT ....
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....t and section 50 of Contract Act were considered. 16. They also placed reliance on: [1999] 96 Comp Cas 1 (SC); AIR 1999 SC 1036 in the case of (Industrial Credit and Development Syndicate now called I. C. D.S. Ltd. v. Smt. Smitnaben H. Patel). Their Lordships held that in the absence of agreement between parties regarding mode of payment and in case debtor indicates a manner in which payments have to be adjusted, in such case creditor is not bound to accept such mode for want of an agreement between parties and they should follow the general rule of adjustment firstly towards interest and costs and then to principal amount. 17. They also relied upon the unreported decision of this court in W.A. No. 914 of 2013. In this case property of the assessee was sold for realisation of sales tax due. Property was sold for a sum of rupees forty three lakhs which was not enough to satisfy the interest portion itself. Apparently, as on the date of sale or confirmation of sale, balance amount due to the Sales Tax Department was more than rupees fifty lakhs. According to the assessee, sale amount has to be adjusted towards sales tax and the date of adjustment shall be the date on which the sale....
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....he assessee-appellant granting full relief and setting aside entire demand. The Revenue had filed an application for condonation of delay along with revision. On March 31, 2009 such revision was allowed. By virtue of this order, benefit given by the Tribunal was set aside and the appellant-assessee was under an obligation to pay tax and other amounts demanded by the Department. Much later, on June 25, 2009 the assessee filed an application seeking benefit under the Amnesty Scheme. According to senior counsel arguing for the appellant-assessee, since the order of the Tribunal was in their favour, there was no obligation on them to seek benefit under the Amnesty Scheme. During pendency of Revision Petition No. 76 of 2008 before the High Court, the Amnesty Scheme was introduced. Sub-clause (7) of section 23B does not indicate that the assessee cannot take benefit if the litigation pending is at the instance of the Revenue. Therefore, as on the date of introduction of the Amnesty Scheme, litigation was pending before this court in revision and the same came to be allowed on March 31, 2009. Much later, as the Amnesty Scheme was still in force on June 25, 2009, when no litigation was pen....
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....s under respective Acts. In other words, the benefit provided under section 23B contemplates consideration of the matter independently. Therefore, object and purpose with which benefit was extended under section 23B has to be understood with reference to that particular section without taking recourse to any other provision, is the contention of the appellant-assessee. Under section 55C, non obstante clause is not provided. On more than one occasion, the apex court and various High Courts, including this court had opined that if a particular provision indicates how part payment is to be taken into account, such provision is applicable irrespective of the agreement between the parties or notification by Government if issued contra to the provisions of statute. Therefore, there cannot be a second opinion regarding appropriation or adjustment of amounts paid towards interest and if any balance amount remains, it is payable towards tax and other dues. 22. However, in the present case we have to see whether the factual situation warrants refund of two deposits made during pendency of provisional assessment. Section 55C has to be considered along with section 23B. According to learned s....