Where an appellant withdraws a statutory appeal under a bona fide misconception of law to avail an amnesty scheme, the court may permit the restoration of such appeal to ensure the party is not deprived of their right to contest the underlying liability.

JUDGMENT :

ZIYAD RAHMAN A.A., J.

The petitioner was a registered dealer under the provisions of Kerala Value Added Tax Act, with PIN 3249040067 before the erstwhile State Tax Officer, Peerumedu. The petitioner was engaged in the business of manufactured ice cream under the brand name 'Uncle John'. The petitioner was paying presumptive tax as contemplated under Sec.6(5) of the KVAT Act.

2. In the year 2010-11, the registration of the petitioner was cancelled, on account of the failure on the part of the petitioner in submitting the returns. Subsequently, Ext.P1 series orders of penalty were issued in respect of the assessment years 2011-12, 2012-13, 2013-14, 2014-15 and 2015-16, alleging that the petitioner had carried out transactions even after the cancellation of the registration. Thus, in the penalty orders, while imposing the liability on the petitioner, the tax was reckoned at the rate of 12.5% for 2011- 12 and 13.5% for the assessment years 2012-13, 2013-14 and for the remaining years 14.5%, whereas, according to the petitioner, the actual liability of the petitioner, being a dealer paying tax as presumptive, was only 0.5%. Thereafter, Ext.P2 orders of assessment were passed based on the findings in Ext.P1 series orders of penalty.

3. Based on the same, Ext.P3 recovery notices were issued and in execution of the same, the petitioner was detained in civil prison. Ext.P4 is the order of detention passed by the 4th respondent. Thereafter, the petitioner was released from prison on 28.03.2023, after the petitioner paid an amount of Rs.4,00,000/- towards the arrears payable.

4. Later, the petitioner challenged Ext.P1 series penalty orders and Ext.2 series assessment orders, by submitting statutory appeals before the 1st Appellate Authority. However, those appeals were rejected by the Ist Appellate Authority; Ext.P6 common order was passed, in respect of the appeals submitted against the assessment orders and Ext.P8 common order was passed in respect of the appeals filed against the orders of penalty. As against the Ext.P6 order passed in respect of the assessment for 2011-2012, Ext.P7 is the 2^nd appeal and according to the petitioner, he had submitted similar appeals in respect of the other 1^st appellate orders in respect of the assessment orders.

5. During the pendency of the same, the Government introduced Amnesty Scheme, 2024 and in order to avail the benefits of the same and settle the liability once and for all, the petitioner had withdrawn Ext.P7 appeal and other similar appeals. Accordingly the appeals were permitted to be withdrawn, as evidenced by Ext.P10 order dated 27.09.2024. As part of availing Amnesty Scheme 2024, the petitioner submitted Ext.P13 communication along with Ext.P13(a).

6. According to the petitioner, as per clause (18) of Ext.P9 scheme of settlement, no separate application for settlement is necessary in cases where, the liability payable by the assessee, is already recovered from the assessee by invoking the revenue recovery proceedings. According to the petitioner, in this case, since Rs 4,00,000/- is recovered from the petitioner, that is sufficient to satisfy the requirement of the amount payable under the Amnesty Scheme and therefore no separate application was necessary. According to the petitioner, the Ext P13 application submitted by the petitioner for issuance of settlement certificate under the Amnesty Scheme, was not considered by the statutory authorities and recovery proceedings were continued. The petitioner also highlighted that the registration of the peti