R.PRIYA V. COMMERCIAL TAX OFFICER

WP(C)/7032/2011

AI Insights

The case involves R. Priya, the Managing Director of Priya Rubber Estate & Plantation (P) Ltd, who filed a writ petition against various government authorities challenging the assessment orders issued under the Kerala General Sales Tax Act (KGST Act), Central Sales Tax Act (CST Act), and Agricultural Income Tax Act (AIT Act) for the years 1991-92 to 1998-99. The petitioner contended that the company was not in possession of the properties during the relevant periods as they were under the control of a receiver appointed by the Debt Recovery Tribunal and other authorities. The government argued that the company had previously expressed willingness to pay the dues and had not contested the assessments in a timely manner. The court dismissed the petition, allowing the petitioner to seek statutory remedies if applicable.

• Counselvise Citation: [2011] 140 COUNSELVISE.COM (IT) 742699 (HC-KERALA)
• Appeal Type: Others
• Pronouncement Date: 10-06-2011
• Assessment Year: misc
• Laws Referred To: Kerala General Sales Tax Act (KGST Act), Central Sales Tax Act (CST Act), Agricultural Income Tax Act (AIT Act), Kerala Forest (Vesting and Management of Ecologically Fragile Lands Act 2003)
• Result in Favour of: Revenue
• Court: HIGH COURT
• Department Lawyers: V K SHAMSUDHEEN
• Assessee Lawyers: N NAIR; K HYMAVATHY
• Keywords: Assessment Order; Possession; Possession; Revenue recovery; Statutory remedy; Tax liability; Writ petition
• Section: P5; P23

Judgement Text

" IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE C.K.ABDUL REHIM FRIDAY, THE 10TH JUNE 2011 / 20TH JYAISHTA 1933 WP(C).No. 7032 of 2011(D) -------------------------------------- PETITIONER: ------------------- R.PRIYA, MANAGING DIRECTOR, M/S.PRIYA RUBBER ESTATE & PLANTATION (P) LTD, KOCHUTHOPPIL, PARUMALA P.O., THIRUVALLA. BY ADVS. SRI.N.MURALEEDHARAN NAIR, SMT.K.HYMAVATHY. RESPONDENTS: ------------------------ 1. THE COMMERCIAL TAX OFFICER, ANCHAL, KOLLAM DISTRICT - 691 306. 2. THE RECOVERY OFFICER, DEBT RECOVERY TRIBUNAL, PANAMPILLY NAGAR, ERNAKULAM, COCHIN - 682 036. 3. RECOVERY OFFICER, EMPLOYEES PROVIDENT FUND ORGANISATION, PATTOM, THIRUVANANTHAPURAM. 695 005. 4. STATE OF KERALA, REPRESENTED BY SECRETARY TO GOVERNMENT, FOREST DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM. 695 005. R1 & R4 BY GOVERNMENT PLEADER SRI. V.K. SHAMSUDHEEN. THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 10/06/2011,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C). NO.7032/2011-D: APPENDIX PETITIONERS' EXHIBITS: EXT.P.1: COPY OF THE JUDGMENT IN W.P.(C).NO.13744/2007-J DTD 13/07/2009. EXT.P.1.A: COPY OF THE JUDGMENT ON THE CONTEMPT PETITION NO. 429/2010 DTD. 15/09/2010. EXT.P.2: COPY OF THE NOTIFICATION DTD. 16/02/2010. EXT.P.3: COPY OF THE LETTER GIVEN BY THE PETITIONER TO THE R.1. DTD. 13/06/2008. EXT.P.4: COPY OF THE INTIMATION UNDER THE AMNESTY SCHEME FOR THE YEARS 88- 89 TO 90-91 ISSUED BY R.1. DTD. 11/07/2008. EXT.P.5: COPY OF THE ASSESSMENT ORDER UNDER KGST ACT FOR THE YEAR 1991-92 DTD. 16/02/1998. EXT.P.6: -DO- -DO- 1992-93 DTD. 09/01/1999. EXT.P.7: -DO- -DO- 1993-94 DTD. 09/03/1999. EXT.P.8: -DO- -DO- 1994-95 DTD. 09/03/1999. EXT.P.9: -DO- -DO- 1995-96 DTD. 09/03/1999. EXT.P.10: -DO- -DO- 1996-97 DTD. 09/03/1999. EXT.P.11: -DO- -DO- 1997-98 DTD. 09/03/1999. EXT.P.12: COPY OF THE ASSESSMENT ORDER UNDER CST ACT FOR THE YEAR 1992-93 DTD. 16/02/1998. EXT.P.13: -DO- -DO- 1995-96 DTD. 09/03/1999. EXT.P.14: -DO- -DO- 1996-97 DTD. 09/03/1999. EXT.P.15: -DO- -DO- 1997-98 DTD. 09/03/1999. EXT.P.16: COPY OF THE ASSESSMENT ORDER UNDER AIT ACT FOR THE YEAR 1991-92 DTD. 02/12/1996. EXT.P.17: -DO- -DO- 1992-93 DTD. 02/12/1996. EXT.P.18: -DO- -DO- 1993-94 DTD. 17/12/1998. EXT.P.19: -DO- -DO- 1994-95 DTD. 25/11/1999. W.P.(C). NO.7032/2011-D: EXT.P.20: -DO- -DO- 1995-96 DTD. 13/12/2000. EXT.P.21: -DO- -DO- 1996-97 DTD. 02/01/2002. EXT.P.22: -DO- -DO- 1997-98. EXT.P.23: -DO- -DO- 1998-99 DTD. 07/02/2004. RESPONDENTS' EXHIBITS: NIL. //TRUE COPY// P.A. TO JUDGE. Prv. C.K.ABDUL REHIM, J. --------------------------------------- W.P.(C) No. 7032 OF 2011 --------------------------------------- Dated this the 10th day of June 2011. J U D G M E N T This Writ Petition is filed seeking to quash Exts.P5 to P23 orders of assessment finalised under the provisions of the Kerala General Sales Tax Act (KGST Act) and Central Sales Tax Act (CST Act) and also under the Agricultural Income Tax Act (AIT Act). Petitioner is also seeking direction to restrain the respondents from proceeding against properties belonging to her, for realisation of amounts due under Exts.P5 to P23 through the revenue recovery steps initiated. It is evident that the petitioner is the Managing Director of a Company against which the assessments were completed. It is further evident that the Exts.P5 to P23 orders of assessment were issued by the authorities concerned, during the period from 1996 onwards. W.P.(C) No. 7032 of 2011 2 2. Contention of the petitioner is that, during the relevant periods with respect to which the assessments were completed, the Company was not in possession of the properties in question. It is stated that M/s. Canara Bank had filed a civil suit for realisation of money before the Sub Court, Kottarakkara and the said suit was ultimately transferred to the Debt Recovery Tribunal, Ernakulam. A receiver appointed by the Debt Recovery Tribunal, was in possession of the property from 1996 onwards. It is also contended that due to default in payment of amounts due towards Employment Provident Fund, recovery officer of the said organisation has taken over possession of the properties. Yet another contention is that the State Government had proceeded against the property in question under the provisions of the Kerala Forest (Vesting and Management of Ecologically Fragile Lands Act 2003, and a considerable extent of land owned by the Company was taken over by the Govt. Under the W.P.(C) No. 7032 of 2011 3 circumstance as mentioned above, it is contended that, the Company was not in possession of the property in question from the year 1991 onwards and for the relevant periods for which the assessment were completed, the company is not at all liable for payment of any tax. 3. Learned Govt.Pleader appearing on behalf of respondents pointed out that the company in question had expressed willingness to make payment of the amounts due, in a writ petition field before this court challenging the proceedings for recovery initiated at the behest of M/s. Canara Bank. Since the Company had failed to make payment of the tax amount as promised, proceedings under the Contempt of court was also initiated. Therefore, the petitioner is precluded from raising any challenge against Exts.P5 to P. 23 assessments, is the contention. 4. While considering the facts and circumstance as narrated above, I am of the view that the dispute now W.P.(C) No. 7032 of 2011 4 raised against the recovery steps is not sustainable, since there exist valid assessments finalised against the company to which the petitioner herein is the Managing Director. It is pertinent to note that, neither the company nor the petitioner had challenged the assessments by resorting to appropriate statutory remedy. At this belated point of time, it is not proper for this court to entertain challenges against those assessments, especially in view of the fact that the nature of the dispute pertains to factual circumstances, for evaluation of which consideration of evidence is necessary. Learned counsel for the petitioner submits that neither the company nor the petitioner had received copies of the impugned assessments, because they were not in possession of the property in question. It is left open to the petitioner to seek appropriate statutory remedy against the assessments by seeking condonation of delay if the petitioner has got a case that orders of assessments were not served W.P.(C) No. 7032 of 2011 5 within any reasonable time. 5. In the above mentioned circumstance, I am of the view that the writ petition deserves no merit. However, liberty to the petitioner to challenge Exts.P5 to P23 orders by resorting any statutory remedy is left open, if permissible under law. 5. In the result, the Writ Petition is dismissed reserving liberty of the petitioner as stated above. C.K.ABDUL REHIM JUDGE al "