TaxTMI 
TaxTMI 
2024 (12) TMI 1766
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....he stand that the same is assessable at the higher rate of 12.5% /13.5% / 14.5%. Assessments were also finalized accordingly for the various assessment years at the higher rates as above. The assessments at the higher rate were questioned before this Court and the matter stood decided against the petitioner by Ext.P5 judgment produced in W.P(C) No.17130 of 2017. The said judgment stood confirmed by a Division Bench of this Court, on account of which, the petitioner filed Special Leave Petitions before the Apex Court. When coercive steps were taken for the realization of the dues, the petitioner sought for stay before the Apex Court by filing an appropriate application. By Ext.P7, the Apex Court ordered interim stay "on deposit of Rs.20 crores within 8 weeks' time". The petitioner remitted the amount of Rs.20 crores along with Ext.P8 covering letter, to the Assessing Authority. The Special Leave Petitions were finally dismissed by Ext.P9 judgment dated 30.09.2016. Though review petitions were filed before this Court, by Ext.P10 judgment dated 04.01.2017, the petitions were rejected on the ground of delay, refusing to condone the same. 3. The assessment for the year 2013-14 stood ....
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....appropriate applications. By Ext.P11, the Assessing Authority has issued a notice under Section 10 of the Kerala Finance Act, 2020 proposing to adjust the payments made as above towards the arrears payable under the various assessment orders. The petitioner filed a detailed reply pointing out that the payments already made as above, be properly appropriated as cases of "deposits" and thereafter settled towards the dues under the Amnesty Scheme, in which event, there will be excess payments which would have to be refunded to the petitioner. 8. It is in the above circumstances that the captioned writ petitions are filed by the petitioner. In W.P(C)No.17130 of 2017, the petitioner has mainly sought for the following reliefs: "(cd) Issue a writ of mandamus or other appropriate writ or order directing the 1st respondent to return a sum of Rs.7,50,00,000/- which was deposited by the petitioner pursuant the interim order of this Hon'ble Court dated 24.5.2017 as evidence by Ext P23 and Ext P24. (ce) Issue a writ of mandamus or other appropriate writ or order directing the 1st respondent to return/refund an excess sum of Rs. 3,75,96,181 which will be available with ....
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....applied for Amnesty benefits under the 2017 Scheme. The 2017 Scheme did not contain any non-obstante clause with respect to the payments already effected and their treatment qua the provisions of the Act. Therefore, whatever amounts paid by the petitioner are to be adjusted to the accrued interest, and only if there is any balance remaining unadjusted, can the same be set off against tax. (ii) He invites the attention of this Court to an order dated 27.7.2017 by which the amnesty under the 2017 Scheme was originally accepted. By the said order, the payment of Rs.20 crores effected by the petitioner was adjusted towards tax. But insofar as the said adjustment was incorrect, the afore order was suo motu cancelled/set aside for fresh disposal by the superior authority. Though the petitioner had challenged the suo motu action as above, dated 16.11.2017, by filing W.P. (C) No.40713 of 2017, the said writ petition was later withdrawn by the petitioner. In the light of the above, he points out that the application filed under the 2017 Scheme is pending even as of now. (iii) By pointing out the pendency of the 2017 application, he contends that the petitioner may not be e....
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....der the 2017 Scheme, which is still pending. The learned Special Government Pleader points out that the 2017 application was once allowed, and later, the said order was cancelled/set aside by the superior authority, and therefore, the 2017 application is pending as on date. In this connection, it is to be noticed that the Amnesty Scheme, 2020, is introduced by the provisions of the Kerala Finance Act, 2020. Section 10 of the Finance Act provides for the amnesty benefits. Sub-Section (12) to Section 10 reads as under; "(12) Assessees who have opted to settle their arrears under section 31A or section 31B of the former Act during previous years, but had failed to make payments may also opt to settle their cases under this section, and the amounts, if any, paid earlier shall be given credit as tax before reckoning the arrears to be settled under sub-section (6) and the assessee shall furnish the proof of payments made in this regard, however that no refunds shall be allowed." A reading of the afore provision makes it clear that, even if an assessee had opted for settling the liability under the previous schemes, he is entitled to file an application under the 2020 Scheme i....
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....d notice, including the tax paid under clause (a) of sub-section (1) of section 74, of the former Act such amount shall be given credit as tax before reckoning the arrears to be settled under sub-section (6) and the assessee shall furnish the proof of payments made in this regard:" (Underlining supplied) A reading of the afore provision would show that the provisions of Section 91 of the KVAT referred to above have been made inapplicable by virtue of the non-obstante clause. Therefore, the apportionment of various payments is to be made without reference to the provisions of Section 91. The position is made clear by providing that any payment made "after the service of the demand notice" has to be given credit as "tax", before reckoning the arrears to be settled under sub-section (6). It is also made clear through the proviso thereunder that if any payment is made towards penalty or its interest, such payments are not to be given credit as tax under sub-section (8) to Section 10. 17. At this juncture, the contention of Sri. Rafiq with respect to the prospective operation of Section 10(8) of the Scheme, is to be considered. However, the provisions of Section 10(8) have cove....
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....y, the said payments have necessarily to be seen as provisional and subject to the final outcome of the litigation. When we reckon the payments already made by the appellant and compare it with the settlement amount arrived at through a computation as envisaged under the Amnesty Scheme, 2020, we find that as against a liability of Rs. 2,45,43,736/-, the appellant has paid an amount of Rs. 3,19,32,523/-. We are of the view that the said amount paid by the appellant can be treated as in full and final settlement of the dues for the assessment years 1998-99 to 2004-05 and 2015-16 so as to put a quietus to the litigation between the parties. We are conscious of the fact that in this process, the appellant would have effectively paid an amount of Rs. 73,88,787/- in excess to the Department. However, the learned senior counsel for the appellant graciously submits that he waives the claim for a refund of the said amount in the spirit of settlement." The afore principles would apply to the facts and circumstances of the case at hand also. It is noticed that an amount of Rs.20 Crores was paid by the petitioner pursuant to the directions issued by the Apex Court. The further amou....
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....l Government Pleader, with reference to the provisions of Section 10(1) of the Scheme is also to be taken into account. The provisions of section 10(1) of the Scheme, reads as under; "10. Special provision for Reduction of arrears in certain cases. - (1) Notwithstanding anything contained in sub-section (1) of section 174 of the Kerala State Goods and Services Tax Act, 2017 (20 of 2017) and in the Kerala Value Added Tax Act, 2003 (hereinafter referred to as the former Act) or rules made thereunder or in any judgment, decree or order of any court, tribunal or appellate authority, any assessee who is in arrears of tax or any other amount due under the former Act or under the Central Sales Tax Act, 1956 (Central Act 74 of 1956) relating to the period up to and including 30th June, 2017, may opt for settling the arrears on payment of,- (i) fifty per cent of the principal amount of the tax in arrears; or (ii) forty per cent of the principal amount of the tax in arrears, if the amount is paid in lump sum within 30 days of receipt of intimation of the assessing authority referred to in sub-section (7):" According to Sri.Muhammed Rafiq, by virtue of the non-ob....
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....ner by Ext.P11, which is challenged in these proceedings. Therefore, the contention raised that on account of the expiry of the Scheme, no direction can be issued, is only to be rejected. 24. In the light of the afore, I am of the opinion that the petitioner is justified in contending that the deposits made as noticed in paragraph No.5 above, are to be treated with reference to the provisions of the Amnesty Scheme, 2020 alone and not with reference to the provisions of Section 91 of the KVAT Act. 25. The last question arising for consideration is as to whether the petitioner would be entitled to any refund. In this connection, the learned Special Government Pleader would contend that the provisions of the Amnesty Scheme are self-contained one and there is a bar on refund provided with respect to the said Scheme. He relies on the provisions of Section 10(9) in that regard, which reads as under; "9) Notwithstanding anything contained in this Act, or in any judgment, decree or order of any court, tribunal or appellate authority, there shall not be any refund or any adjustment subsequently for the amount settled under this scheme, under any circumstances." A reading o....