Wp(C)/29744/2009 Of Babu Antony v. The Agricultural Income Tax

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE C.K.ABDUL REHIM THURSDAY, THE 5TH NOVEMBER 2009 / 14TH KARTHIKA 1931 WP(C).No. 29744 of 2009(K) -------------------------- PETITIONER(S): --------------- BABU ANTONY, S/O.ANTONY, AGED 49 YEARS VADAKKEPARMBIL, PATHIRAPPALLY.P.O. ALAPPUZHA. BY ADV. SRI.VINOD J.DEV SRI.PRAMOD J.DEV RESPONDENT(S): --------------- THE AGRICULTURAL INCOME TAX AND COMMERCIAL TAX OFFICER, OFFICE OF AGRICULTURAL INCOME TAX AND COMMERCIAL TAX OFFICE, ALAPPUZHA. GOVERNMENT PLEADER SRI.C.K.GOVINDAN THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 05/11/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: C.K.ABDUL REHIM.J -------------------------------- W.P.(C).No.29744 of 2009 ------------------------------- Dated this the 5[th] November,2009 JUDGMENT Petitioner has approached this court aggrieved by Ext.P3notice by which the petitioner was threatened with recoverysteps under the Kerala Revenue Recovery Act, for realisationof the tax amounts due with respect to the year 1998-1999.The recovery steps are initiated, because the petitioner failedto make payment of the amounts under the Amnesty Scheme,which was allowed to him. The amount of tax payable by thepetitioner was Rs.2,63,192/- (Rupees Two Lakhs Sixty ThreeThousand One Hundred and Ninety Two only). The AmnestyScheme as provided in Section 23 B of the KGST Act wasallowed, reducing the amount to Rs.1,89,137/- (Rupees OneLakh Eighty Nine Thousand One Hundred and Thirty Sevenonly). The petitioner was directed to make payment of 25%of the said amount within 15 days of receipt of the intimation,and the balance amount in three equal instalments at the rateof Rs.47,284/- (Rupees Forty Seven Thousand Two Hundred and Eighty Four only) each, starting from the month ofOctober 2008. It is further stated in Ext.P1 that all the threeinstalments shall be paid before 10[th] of every month. 2.The petitioner remitted 25% of the amount on8/7/2009. Thereafter he made payment of Rs.25,000/- (Rupees Twenty Five Thousand only) on 8/9/2009. Accordingto the petitioner, prompt payments could not be made due toheavy financial loss suffered by him in the business activity.While so Ext.P3 notice was issued to the petitioner intimatingthat if the balance amount is not remitted within 3 days,recovery steps will be initiated for the realisation of the entireamount of tax in arrears. According to the petitioner he hadapproached the respondent on receipt of Ext.P3 andrequested for two months time to settle payment of the entireamounts. But that request was not acceded to and recoverysteps has now been initiated. 3.In the counter affidavit filed on behalf ofrespondents it is admitted that petitioner had effectedremittance of two instalments. But it is contended that, thereafter the petitioner made a request to permit payment ofthe balance amount within 10 days and such request wasaccepted on condition that on failure the permission will berevoked. The petitioner had not remitted the amount within10 days of receipt of same as requested. Therefore thepermission granted under the Amnesty Scheme wascancelled, through order No.13200072/09-10 dated5/9/2009, and thereafter the entire tax amount is liable to berecovered. It is further stated that permission under theAmnesty Scheme is purely a contract/agreement between theDepartment and the dealer and on any failure from the side ofthe dealer to comply with the terms of such contract, he willloose the benefit of such scheme. Respondents are relying onthe dictum laid by the Hon'ble Supreme Court in BharathiyaTelephone Limited Vs.The Commissioner of Customsreported in AIR2002 SC 74, in support of the above contention. 4.It is noticed from Ext.P1 communication that thepetitioner was requested to remit 25% of the amount within15 days and the balance amount in three equal monthly 4.It is noticed from Ext.P1 communication that thepetitioner was requested to remit 25% of the amount within15 days and the balance amount in three equal monthly instalments starting from the month of October 2008.In factgoing by the provision contained in Section 23 B (4), afterpayment of 25% the dealer has to pay balance amount inthree monthly instalments, starting from the next monthonwards. However, it is evident that petitioner had remittedinitial instalments, of 25% and further paid an amountRs.25,000/- (Rupees Twenty Five Thousand only). It isfurther evident that petitioner was not given any reasonabletime, on issuance of Ext.P3 notice, because the time allowedwas only three days. Going by the stipulations in Ext.P1,petitioner need to pay the entire balance only beforeDecember 2008. 5.Having regard to the entire facts and circumstancesI am of the opinion that leniency can be shown in the matterfor permitting the petitioner to pay the balance amount as perExt.P1 within a short period. 6.Accordingly the writ petition is disposed directingthe respondent to accept payment of the balance amount dueunder Ext.P1 towards full and final settlement of payment of the tax amount due for the year 1998-1999, if the petitionermakes payment of the balance amount therein, on or before20/11/2009. If payment as above is made, it is needless tosay that, respondents will be refrained from any furthercoercive step of recovery. C.K.ABDUL REHIM,JUDGE ssn