Rp/1058/2010 Of The Agricultural Income Tax & Commercial v. Thressiamma George

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.R.RAMACHANDRA MENON WEDNESDAY, THE 1ST DECEMBER 2010 / 10TH AGRAHAYANA 1932 RP.No. 1058 of 2010 --------------------- AGAINST THE JUDGEMENT IN WPC.22814/2010 Dated 18/08/2010 .................... REVIEW PETITIONERS/ RESPONDENTS: ------------------------------------------- 1. THE AGRICULTURAL INCOME TAX AND COMMERCIAL TAX OFFICER,OFFICE OF THE AGRICULTURE AND COMMERCIAL TAX,KANJIRAPPILLY. 2. THE DEPUTY COMMISSIONER,OFFICE OF THE DEPUTY COMMISSIONER,COMMERCIAL TAXES, KOTTAYAM. 3. THE COMMISSIONER OF COMMERCIAL TAXES, OFFICE OF THE COMMISSIONER OF COMMERCIAL TAXES, THIRUVANANTHAPURAM. BY SPL.GOVERNMENT PLEADER(TAXES),SRI.VINOD CHANDRAN RESPONDENT/PETITIONER: ----------------------------- THRESIAMMA GEORGE,KARIMPANAL, CHAITHANYA,KANJIRAPPILLY. BY ADV. SRI.RAMESH CHERIAN JOHN THIS REVIEW PETITION HAVING COME UP FOR ADMISSION ON 01/12/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: P.R. RAMACHANDRA MENON, J. - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 1[st] day of December, 2010 O R D E R This Review Petition has been filed at the instance ofthe Revenue stating that there occurred an error apparent on theface of record, when W.P.(C) No.22814 of 2010 was disposed ofon 18.08.2010, directing to release the amount covered byExt.P1 by way of interest as ordered by the concernedrespondent. 2. Review Petitioners contend that reference made to Section 68(4) of the Kerala Agricultural Income Tax Act whichprovides for granting of interest at the rate of 15% per annum isnot applicable to the case in hand. The learned SpecialGovernment Pleader(Taxes) appearing for the review petitionerssubmits that there is no provision in the Old Act which governsthe field in question and as such, the verdict passed by thisCourt, directing payment of interest, is liable to be reviewed. 3. On going through the materials on record, it is -:2:- seen that, the impugned judgment was passed not placingreliance on Section 68(4) of the Kerala Agricultural Income TaxAct or as to the rate of interest payable accordingly; though areference was made to the said provision in paragraph 5 of thejudgment. 4. The entire sequence of events was taken note of bythis Court with regard to the claim for interest. As a matter offact, the writ petitioner was compelled to effect the deposit asper the interim order passed by the Tribunal, as a condition foravailing the benefit of interim stay during the pendency of therevision petition. Ultimately, the merit of the case wasconsidered and the review was allowed in favour of the assessee,when the assessee became entitled to have the refund. Nopositive action was taken by the respondents to effect the refund,who, on the other hand, were enjoying the said amountgenerating interest. Since there was no other alternative, theassessee approached this Court by filing W.P.(C) No.16608 of2007, which culminated in Ext.P4 judgment dated 29.06.2007,whereby the excess amount was directed to be repaid with -:3:- “eligible interest”. 5. The above judgment was not complied with, which made the assessee to approach this Court by filing ContemptCase, leading to Ext.P6 order dated 25.01.2008, wherein the onlycontention put forth from the part of the respondent/contemnorwas to have some more time to satisfy the liability; which wasgranted and the Contempt Case was closed. The positionremained to be the same, which made the assessee to fileanother Contempt Case (No.1127 of 2008) which led to Ext.P7order dated 14.08.08 holding that 'Interest' was a matter foradjudication and accordingly, the issue was directed to bepursued before the concerned authority. -:3:- “eligible interest”. 5. The above judgment was not complied with, which made the assessee to approach this Court by filing ContemptCase, leading to Ext.P6 order dated 25.01.2008, wherein the onlycontention put forth from the part of the respondent/contemnorwas to have some more time to satisfy the liability; which wasgranted and the Contempt Case was closed. The positionremained to be the same, which made the assessee to fileanother Contempt Case (No.1127 of 2008) which led to Ext.P7order dated 14.08.08 holding that 'Interest' was a matter foradjudication and accordingly, the issue was directed to bepursued before the concerned authority. 6. Pursuant to Ext.P7 order, the issue was consideredby the concerned authority who passed Ext.P8 order dated24.02.2010 finding that a sum of `74,316/- was liable to be paidas 'interest'; which was accordingly ordered to be paid to theassessee. It was thereafter that Ext.P9 communication wasissued from the office of the Deputy Commissioner stating thatthe amount mentioned in Ext.P8 was not liable to be paid. -:4:- 7. Challenging Ext.P9, the assessee approached this Court through the above Writ Petition and it was after consideringall the facts and circumstances as above, that the matter wasfinalized as per the impugned judgment; more so when Ext.P8order passed after adjudication of the issue had attained finality;which could not have been watered down through Ext.P9communication. This being the position, there is no 'errorapparent on the face of the records' to invoke the power ofreview. As such, interference is declined and the Review Petitionis dismissed as devoid of any merit. ttb P.R. RAMACHANDRA MENON, JUDGE