Payments made during litigation are provisional and should be considered under the Amnesty Scheme for resolving tax liabilities.

D r. A.K. Jayasankaran Nambiar, J.

The Writ Appeal is preferred against the judgment dated 23.01.2024 of a learned Single Judge in W.P.(C).No.1291 of 2021 whereby, the learned Single Judge found that there was no necessity for interfering with Ext.P17 order passed by the respondent quantifying the amounts that had to be paid by the appellant towards arrears of tax, penalty and interest under the Amnesty Scheme introduced by the Kerala Finance Act, 2020 in relation to outstanding dues under the Kerala General Sales Tax Act [hereinafter referred to as the “KGST Act”].

2. The Review Petition was filed pursuant to a permission granted by the Supreme Court in Civil Appeal No.8500 of 2010 that was in turn preferred against the judgment and order dated 21.12.2009 by this Court in W.P.(C).No.12901 of 2009. Inasmuch as the fate of the Review Petition would have had a bearing on the decision taken by us in the Writ Appeal, we posted all the aforementioned cases together for hearing and now dispose all of them by this common judgment.

3. For the sake of convenience, the reference to the parties is as they appear in the Writ Appeal. The brief facts necessary for disposal of these cases are as follows:

The appellant is an assessee on the rolls of the Assistant Commissioner (Assessment), Special Circle, Thrissur. During the period between 1998-99 and 2015-16, it was operating a distillery manufacturing Indian Made Foreign Liquor on the strength of the licences obtained by it from various statutory authorities. The appellant had also been paying the turnover tax in respect of the total conceded sales turnover of Indian Made Foreign Liquor that was supplied by it to the Kerala State Beverages Corporation. On account of a dispute having been raised with regard to inclusion of the excise duty component in the total turnover for the purposes of levy of turnover tax, the appellant did not pay tax on the said excise duty component along with its returns for the relevant assessment years from 1998-99 to 2004-05. The said issue regarding inclusion of the excise duty component in the total turnover for the purposes of turnover tax under the KGST Act came to be settled by the decision of a Constitution Bench of the Supreme Court only on 06.05.2005 by the judgment reported in State of Kerala v. Maharashtra Distilleries Ltd. and another - [(2005) 141 STC 358]. The Court held that excise duty paid will form part of the total turnover for the purposes of levy of turnover tax.

4. The Assessing Authority completed the assessments for the aforesaid assessment years and raised a demand of tax and interest on the appellant vide Ext.P2 series of orders. The appellant preferred appeals before the First Appellate Authority against the said orders, and when recovery proceedings were launched for realisation of the disputed tax amounts for the assessment years 1998-99 to 2001-02, the appellant preferred W.P.(C).No.27673 of 2006 before this Court. A learned Single Judge of this Court dismissed the said writ petition on 20.10.2006. The Writ Appeal that was thereafter preferred was disposed by a Division Bench, directing the First Appellate Authority to dispose the appeals pending before it expeditiously and by staying the recovery proceedings in the meanwhile subject to payment of 50% of the disputed tax, exclusive of interest within three weeks. The appellant accordingly deposited an amount of Rs.69,09,515/- before the Assessing Authority towards 50% of the disputed tax exclusive of interest for the assessment years 1998-99 to 2001-02.

5. The First Appellate Authority thereafter rejected the appeals p