(2012) 253 KLR 354 IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT: THE HONOURABLE MR.JUSTICE P.R.RAMACHANDRA MENON WEDNESDAY, THE 21ST DAY OF MARCH 2012/1ST CHAITHRA 1934 WP(C).No. 27168 of 2009 (M) ---------------------------------------- PETITIONER: ------------------- T.S.SAJIMON, S/O.SREEDHARAN, AGED 37, THOOMPUKAL HOUSE, KALLARA P.O., KOTTAYAM, FROM THOOMPUKAL HOUSE, KOTHANALLOOR VILLAGE, KOTTAYAM DISTRICT. BY ADVS.SRI.M.RAMASWAMY PILLAI, SRI.P.M.JOSEPH. RESPONDENTS: ------------------------ 1. STATE OF KERALA, REP.BY CHIEF SECRETARY, STATE SECRETARIAT, THIRUVANANTHAPURAM. 2. THE SALE TAX OFFICER, COMMERCIAL TAXES, ETTUMANOOR, VAIKOM. 3. THE DISTRICT COLLECTOR, COLLECTORATE, KOTTAYAM. 4. THE TAHSILDAR (RR), TALUK OFFICE, VAIKOM. 5. THE VILLAGE OFFICER, KOTHANALLOOR VILLAGE, KOTTAYAM DISTRICT. 6. THE EXECUTIVE ENGINEER, P.W.D. BUILDING DIVISION, KOTTAYAM. 7. THE ASSISTANT EXECUTIVE ENGINEER, BUILDINGS SUB-DIVISION, PALA. BY SR. GOVERNMENT PLEADER SRI. S. SUDHISH KUMAR. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 21-03-2012, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: APPENDIX PETITIONER'S EXHIBITS:
RESPONDENTS' EXHIBITS:
//TRUE COPY// P.A. TO JUDGE. Prv. P.R. RAMACHANDRA MENON J. ~~~~~~~~~~~~~~~~~~~~~ W.P(C) No. 27168 of 2009 ~~~~~~~~~~~~~~~~~~~~~ Dated, this the 21st day of March, 2012 Head Note:- Kerala Revenue Recovery Act, 1968 - Section 23B - The non-obstante clause provides that, notwithstanding anything containing contrary in the Revenue Recovery Act, once the Scheme is availed, not even the collection charge under the Revenue Recovery Act, is liable to be realised. It has to be borne in mind that the said provision is incorporated under the Scheme, with an intent to see that the dispute, which otherwise was being protracted and pending for long, was to be put to a finality, once and for all; enabling the defaulter to clear the liability in a phased manner. As such, after satisfaction of the liability in terms of the Scheme, no further amount is liable to be paid by the defaulter and the liability comes to an end, even in respect of 'collection charges' if any. JUDGMENT The petitioner is challenging the liability mulcted upon him to satisfy a sum of Rs. 44,808/- , pursuant to Ext. P12 communication issued by the Executive Engineer of PWD to the 4th respondent, over and above the amount shown in Ext. P10 for settling the entire liability under the 'Amnesty Scheme'. 2. The factual position is as follows : The petitioner is a dealer engaged in the trade of wall tiles, floor tiles etc. run in the name and style as 'Himalaya Agencies' and is an assessee on the rolls of the second respondent. During the course of business, the petitioner turned to be a defaulter with regard to the satisfaction of the amount due to the sales tax authorities, in respect of the assessment years 2002 - '03 and 2003 - '04, which led to recovery proceedings resorting to the remedy under the R.R. Act. The property of the petitioner having an extent of 45 cents and the building situated therein was caused to be attached and the same was notified for sale. 3. Incidentally, the petitioner was also proceeded against, by the financier Bank in respect of the loan transaction, whereupon the account was declared as 'NPA' and Section 13 (2) notice was issued under the SARFAESI Act, followed by further coercive steps by proceeding against the secured asset. Met with the situation, the petitioner took steps to have a private sale, so as to secure maximum amount for discharging the liabilities towards the Revenue as well as to the Bank. In the meanwhile, the Government had declared an 'Amnesty Scheme' in tune with Section 23B of the KGST Act and accordingly, the petitioner submitted an application for availing the benefit thereunder. After considering the said application, it was granted as per Ext. P10, whereby the existing liability more than Rs. 90 lakhs was brought down to Rs.5,18,045/- and 25% of the said amount was directed to be satisfied immediately and the balance was to be paid by way of 'three' equal monthly installments commencing from November, 2008. 4. Pursuant to further steps, the prospective purchaser of the property, by name one Mr. Joshy, satisfied the liability to the revenue and also to the Bank. Thereafter, an application was filed to lift the attachment, when the petitioner was informed that there was a further liability to the tune of Rs. 44808/- towards 'valuation charges' payable to the PWD, which according to the petitioner, is not liable to be satisfied under any circumstances, more so, in view of Ext. P10 settling the quantum under the Amnesty Scheme. However, in view of the compelling circumstances, so as to give effect to the private sale, the petitioner, who was finding it difficult to make both the ends meet, made a request to the prospective purchaser of the property to satisfy the said extent as well, who in turn satisfied the liability as per Ext. P13 receipt (as averred in paragraph 25 of the writ petition). According to the petitioner, no such amount ought to have been demanded or realized from the petitioner, in view of the Amnesty Scheme and the statutory prescription, which made him to approach this Court by filing present writ petition, seeking for refund with interest. 5. The 6th respondent has filed a counter affidavit explaining the circumstances under which Ext. P12 order was issued, followed by realization of the due amount. Referring to the contents of Ext. R6(b) and R6 (c) G.Os, it is stated that, in the course of assistance sought to be procured from the PWD, certain amounts as specified had to be satisfied for the said service. Earlier, the said amount was to be paid in advance, but as per relaxation of the relevant rules, it was facilitated to be effected only by the end of the proceedings. In the course of the revenue recovery proceedings, the building situated in the property was got valued by the PWD and the amount payable in respect of such service, in tune with Exts. R2(b) and (c) was worked out at the prescribed rate, since the said amount was demanded by the PWD, as per Ext. P12, which in turn was remitted by the petitioner as borne by Ext. P13. In the said circumstances, the course pursued by the respondents is sought to be justified, contending that no interference is warranted. 6. In this context, the scope of settling liability under the 'Amnesty Scheme' is to be examined. The Scheme takes its origin from the Statutory prescription under Section 23B which reads as follows : "23B Reduction of interest in certain cases - (1) Notwithstanding anything contained in this Act, or in any judgment, decree or order of any Court or Tribunal, an assessee, who is in arrears to pay tax or any other amount due under this Act upto the period ending on 31st March, 2003 may opt for settling the arrears by availing a reduction of interest by paying the amount as shown below - (i) outstanding tax amount along with 30 per cent of interest already due on the date of payment, if paid on or before 29th February, 2004. (ii) outstanding tax amount with 40 per cent of interest already due on the date of payment if paid on or before 31st March 2004. Provided that the reduction in interest granted under this section shall be applicable to cases in which revenue recovery proceedings have already been initiated and where the amount is settled under this section, the assessing authority shall withdrawn the revenue recovery proceedings against such assesee. Provided further that the assessing authority shall have the power to collect the tax advised for revenue recovery. The non-obstante clause provides that, notwithstanding anything containing contrary in the Revenue Recovery Act, once the Scheme is availed, not even the collection charge under the Revenue Recovery Act, is liable to be realised. It has to be borne in mind that the said provision is incorporated under the Scheme, with an intent to see that the dispute, which otherwise was being protracted and pending for long, was to be put to a finality, once and for all; enabling the defaulter to clear the liability in a phased manner. As such, after satisfaction of the liability in terms of the Scheme, no further amount is liable to be paid by the defaulter and the liability comes to an end, even in respect of 'collection charges' if any. 7. In respect of the averments in the writ petition, there is no dispute for the respondents as to the course and events. The only dispute is with reference to Ext. P10. But then, the question is whether the said liability, by way of collection charges if at all any, on the part of the Department of Revenue/Sales Tax, as payable to the PWD in respect of the 'valuation' could have been shifted to the shoulders of the petitioner. Since Section 23B is categoric and the terms of the Scheme are self-contained, there can not be any liability over and above the amount specified in Ext. P10 under the Amnesty Scheme. 8. The petitioner contends that Ext. P12 demand was satisfied by the prospective purchaser of the property and the petitioner has been made to suffer in respect of the respective portion towards the sales consideration. Though, the said person by name Johny, who purchased property is not a party to the proceedings, since there is no dispute with regard to the factual aspects, particularly, as to the sequence of events as narrated by the writ petitioner, this Court accepts the said submission made on behalf of the petitioner. 9. In the above facts and circumstances, Ext. P12 is set aside and it is declared that the petitioner is entitled to get back the amount covered by Ext. P13. The Writ Petition is disposed of, directing the respondents 2 to 4 to take necessary steps to cause the amount covered by Ext. P13 to be returned to the petitioner, as expeditiously as possible, at any rate, within 'three months' from the date of receipt of a copy of this judgment. It is made clear no interest need to be made if the payment is effected within the time as aforesaid. Sd/ P. R. RAMACHANDRA MENON, (JUDGE) kmd |
