JUDGMENT

Petitioner applied for the benefit of the Amnesty Scheme-2020, in respect of the arrears arising under the Kerala Value Added Tax Act, by filing a declaration as contemplated by the Scheme and within the cut of date prescribed by the Scheme. The petitioner has been found ineligible for Amnesty through Ext.P17, on the ground that Ext.P3 appeal in respect of the assessment year 2005-06 is pending consideration before the Appellate Tribunal, at the instance of the Revenue.

2. Learned counsel appearing for the petitioner submits that the declaration made by the petitioner under the provisions of the Amnesty Scheme-2020 was initially accepted through Ext.P16. It is submitted that, later through Ext.P17, which is a communication issued to the Law Officer by the Assessing Authority (with copy to the petitioner) it has been stated that the declaration made by the petitioner under the Amnesty Scheme- 2020 cannot be processed on account of the fact that Ext.P3 appeal for the assessment year 2005-06, at the instance of the Revenue, is pending consideration before the Appellate Tribunal. It is submitted that Ext.P17 communication is contrary to the provisions of the Amnesty Scheme-2020 and it is liable to be set aside.

3. Learned Senior Government Pleader appearing for the respondents very fairly submits that Ext.P17 may not be in accordance with the provisions of the Scheme and also to the declaration of law by a Division Bench of this Court in Writ Appeal No.573/2020 and connected cases. It is submitted that the matter may, therefore, be directed to be considered in accordance with the provisions of the Scheme.

4. Section 10(11) of the Kerala Finance Act 2020, containing the Amnesty Scheme-2020, reads as follows:- ‘’Cases involved in Appeals filed by an officer empowered by the Government under Sections 60 and 62 of the former Act and pending final orders can also be opted to be settled under this scheme, reckoning the the demand in the original assessment order.’’

A reading of the above Clause makes it clear that even in cases where an appeal filed by the State is pending adjudication before any of the appellate authorities, including the appellate tribunal, the application made by an assessee can be processed on the basis of the demand raised in the order of assessment. Further, the Division Bench of this Court in W.A. No.573 of 2020 and connected cases, held as follows:- ‘’7. The Circular subsequently issued by the Department, produced as Exhibit P5 in W.P(C) No.31691 of

2019 from which W.A.No.573 of 2020 arises, however speaks of the appeals filed by the State being continued and the assessees, who are respondent in such appeals, being not eligible for availing the provisions of the Scheme. Immediately we have to notice that even the Circular only speaks of cases in which appeals have already been filed by the State. The rejection orders in two cases contemplate the filing of an appeal. Exhibit P4 in W.P(C) No.31691 of 2019 from which W.A.No.573 of 2020 arises, rejects the application on the ground that a second appeal has been proposed against the order of the first appellate authority. Exhibit P8 in W.P© No.34471 of 2019 from which W.A.No.544 of 2020 arises rejects the application since steps have been taken by the Department to file a second appeal. Exhibit P7 in W.P© No.31298 of 2019 from which W.A.No.679 of 2020 arises speaks of an appeal having been filed already.

8. We agree with the learned Special Government Pleader that there is no ambiguity in the provision which introduced the Amnesty Scheme. It provides for settlement of all pending tax dues and even the tax applicable, with reference to a penalty imposed where there is no best judgment assessment made or contemplated. The requirement is, filing of an application before the dates specified and the withdrawal of the appeals filed by the assessee. We agree with the learned Special Government Pleader that there is no specific provision for the withdrawal of the State's