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Judgment
Manjula Chellur, Ag. C.J.
Heard learned counsel for the appellant as well as Special Government Pleader(Taxes). Appellant herein was the writ petitioner before the learned Single Judge who approached the learned Single Judge seeking the following reliefs:
i. to issue a writ of certiorari or other appropriate writ or orders or direction as this Hon''ble Court may deem fit to quash Ext.P1 order of the First respondent and Ext.P2order of the second respondent and Ext.P8 order of the Third respondent;
ii. to issue a writ of prohibition or other appropriate writ or orders or directions as this Hon''ble Court may deem fit to prohibit the respondents from recovering the penalty illegally levied on the petitioner;
iii. to issue a writ of mandamus or other appropriate writ or orders or directions as this Hon''ble Court may deem fit to direct the respondents to refund the amount already realised from the petitioner towards the penalty imposed as per Ext.P1 order. and
iv. to issue such further orders or directions as this Hon''ble Court may deem fit in the facts and circumstances of this case.
It is not in dispute that the challenge was with regard to penalty proceedings initiated u/s 45A of the Kerala General Sales Tax Act. During the pendency of the writ petition, by virtue of an interim order, the appellant was permitted to approach the authorities concerned to pay assessment amount under OTS(One Time Settlement) Scheme. According to the appellant, the amount paid by virtue of the conditional interim order would be definitely in excess of a amount arrived as OTS. Therefore, he seeks the said amount to be refunded to him. Apparently the relief sought in the writ petition were not in this direction. He ought to have amended the relief. According to learned Government Pleader, the appellant approached the authorities for amnesty Scheme only in respect of actual assessment amount and not penalty as this is evident from the very details furnished in the application indicating the amount demanded and the consent given for voluntary payment in amnesty scheme. If the appellant had actually submitted an application for such benefit, even in respect of penalty amount, he is at liberty to bring to the notice of the Department that he had claimed such benefit, but the same was not considered. Therefore, the learned Single Judge was justified in saying whatever excess amount is paid by the appellant lies with the Department can always be adjusted towards other amounts.
With these observations, the appeal is disposed of reserving liberty to the appellant to approach the authorities concerned for adjustment of the excess amount towards other dues including the penalty amount.