Kerala High Court
Jose T.Simon vs State Of Kerala on 27 September, 2013
Author: P.R. Ramachandra Menon
Bench: P.R.Ramachandra Menon
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE P.R.RAMACHANDRA MENON
TUESDAY,THE 9TH DAY OF DECEMBER 2014/18TH AGRAHAYANA, 1936
WP(C).No. 32197 of 2014 (Y)
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PETITIONER(S) :
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JOSE T.SIMON, AGED 51 YEARS,
MANAGING PARTNER, T.K.KURUVILLA (THACHARA) & COMPANY,
PONKUNNAM, KOTTAYAM- 686 506.
BY ADVS.SRI.PHILIP T.VARGHESE
SRI.THOMAS T.VARGHESE
SMT.ACHU SUBHA ABRAHAM
RESPONDENT(S):
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1. STATE OF KERALA,
REPRESENTED BY THE SECRETARY TO GOVERNMENT
TAXES DEPARTMENT, SECRETARIAT,
THIRUVANANTHAPURAM-695 001.
2. THE COMMERCIAL TAX OFFICER,
PONKUNNAM-686 506.
3. THE DEPUTY COMMISSIONER (APPEALS) II,
COMMERCIAL TAXES,
KOTTAYAM (ON DEPUTATION) TO ERNAKULAM- 682 016.
4. THE INSPECTING ASSISTANT COMMISSIONER,
DEPARTMENT OF COMMERCIAL TAXES, PALA- 686 575.
BY SR.GOVERNMENT PLEADER SMT.SHOBA ANNAMMA EAPEN
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION
ON 09-12-2014, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
Msd.
WP(C).No. 32197 of 2014 (Y)
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APPENDIX
PETITIONER(S)' EXHIBITS
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EXHIBIT-P1: TRUE COPY OF THE ASSESSMENT ORDER ISSUED BY
2ND RESPONDENT FOR 2008-2009 DATED 27.09.2013.
EXHIBIT-P2: TRUE COPY OF THE ASSESSMENT ORDER ISSUED BY
2ND RESPONDENT FOR 2009-2010 DATED 27.09.2013.
EXHIBIT-P3: TRUE COPY OF THE ASSESSMENT ORDER ISSUED BY
2ND RESPONDENT FOR 2010-2011 DATED 27.09.2013.
EXHIBIT-P4: TRUE COPY OF THE ASSESSMENT ORDER ISSUED BY
2ND RESPONDENT FOR 2011-2012 DATED 27.09.2013.
EXHIBIT-P5: TRUE COPY OF THE MEMORANDUM OF APPEAL FILED BY
PETITIONER BEFORE THE 3RD RESPONDENT FOR 2008-2009
DATED 11.10.2013.
EXHIBIT-P6: TRUE COPY OF THE MEMORANDUM OF APPEAL FILED BY
PETITIONER BEFORE THE 3RD RESPONDENT FOR 2009-2010
DATED 11.10.2013.
EXHIBIT-P7: TRUE COPY OF THE MEMORANDUM OF APPEAL FILED BY
PETITIONER BEFORE THE 3RD RESPONDENT FOR 2010-2011
DATED 11.10.2013.
EXHIBIT-P8: TRUE COPY OF THE MEMORANDUM OF APPEAL FILED BY
PETITIONER BEFORE THE 3RD RESPONDENT FOR 2011-2012
DATED 11.10.2013.
EXHIBIT-P9: TRUE COPY OF THE APPLICATION FOR STAY SUBMITTED BY
THE PETITIONER BEFORE THE 3RD RESPONDENT FOR 2008-2009
DATED 11.10.2013.
EXHIBIT-P10: TRUE COPY OF THE APPLICATION FOR STAY SUBMITTED BY
THE PETITIONER BEFORE THE 3RD RESPONDENT FOR 2009-2010
DATED 11.10.2013.
EXHIBIT-P11: TRUE COPY OF THE APPLICATION FOR STAY SUBMITTED BY
THE PETITIONER BEFORE THE 3RD RESPONDENT FOR 2010-2011
DATED 11.10.2013.
EXHIBIT-P12: TRUE COPY OF THE APPLICATION FOR STAY SUBMITTED BY
THE PETITIONER BEFORE THE 3RD RESPONDENT FOR 2011-2012
DATED 11.10.2013.
EXHIBIT-P13: TRUE COPY OF ORDER NO.KVATA NO.3025 TO 3025C/2013 PASSED BY
THE 3RD RESPONDENT DATED 28.10.2013.
EXHIBIT-P14: TRUE COPY OF ORDER NO.30380/B2/2013/TD PASSED BY
THE 1ST RESPONDENT DATED 19.12.2013.
WP(C).No. 32197 of 2014 (Y)
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EXHIBIT-P15: TRUE COPY OF NOTICE ISSUED BY THE 4TH RESPONDENT TO
THE PETITIONER DATED 18.11.2014.
EXHIBIT-P16: TRUE COPY OF G.O.NO.515/2013 ISSUED BY THE 1ST RESPONDENT
DATED 11.10.2013.
EXHIBIT-P17: TRUE COPY OF THE REPRESENTATION SUBMITTED BY
THE PETITIONER TO THE 1ST RESPONDENT DATED NIL.
EXHIBIT-P18: TRUE COPY OF THE REPRESENTATION SUBMITTED BY
THE PETITIONER AND ANOTHER TO THE 1ST RESPONDENT
DATED 16.10.2013.
EXHIBIT-P19: TRUE COPY OF THE LETTER ISSUED BY THE 1ST RESPONDENT TO
THE PETITIONER DATED 29.10.2013.
RESPONDENT(S)' EXHIBITS
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NIL
//TRUE COPY//
P.A.TO JUDGE.
Msd.
P.R. RAMACHANDRA MENON, J.
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W.P.(C) No.32197 of 2014
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Dated this the 9th day of December, 2014.
JUDGMENT
The petitioner, an assessee on the rolls of the second respondent and a retail dealer of Petroleum products marketed by the Bharat Petroleum Corporation Limited, is aggrieved of the coercive proceedings pursued by the 4th respondent by way of Ext.P15 dated 18.11.2014, directing the petitioner to satisfy arrears to the tune of Rs.9,86,501/- (Rupees Nine lakhs eighty six thousand five hundred and one only) within seven days, lest, further proceedings should be pursued in accordance with law.
2. The case of the petitioner is that, the grievance of the petitioner had already been projected before the Government and after considering the merits involved, the 1st respondent/ Government had passed Ext.P14 order dated 19.12.2013, whereby interim stay was granted subject to furnishing Bank guarantee for 1/10th of the dues, till finalisation of the appeal before the statutory authority. The learned counsel for the petitioner submits that, the condition imposed as per Ext.P14 has W.P.(C) No.32197 of 2014 2 been satisfied. Subsequently, on enquiry, the petitioner came to understand that Ext.P15 has been issued by the 4th respondent, based on Ext.P16 G.O. dated 11.10.2013, whereby the augmentation of Revenue was sought to be achieved by various measures as detailed under paragraph (vi) in the following terms:
"(vi) Revenue Augmentation:
(a) An intensive drive for collection of revenue arrears will be taken up immediately. All unconditional stay orders passed by the Government in respect of tax and non-tax revenue items are vacated with effect from 11.10.2013. In future, no unconditional stay orders will be passed. Instalment facilities will be granted only on payment of a minimum of 30% of the arrears on demand;
the maximum number of instalments will not exceed ten.
(b) Urgent action will be taken in consultation with the Advocate General and others concerned for moving the courts for vacation of stay orders issued by courts in respect of tax and non tax revenue items.
(c) Directions will be issued by Heads of Departments to the departmental appellate authorities to dispose of within three months all cases in which stay orders have been passed by such authorities." The learned counsel for the petitioner submits that, a condition has already been imposed by the Government as per Ext.P14 and having satisfied the same, it was no more open for the 4th respondent to have issued Ext.P15, who virtually has sat in appeal over the orders passed by the 1st respondent and hence the challenge.
W.P.(C) No.32197 of 2014 3
3. Heard the learned Government Pleader as well.
4. The factual sequence narrated in the writ petition shows that, Exts.P1 to P4 assessment for the years 2008-2009 to 2011- 2012 have been subjected to challenge by way of Exts.P5 to P8 appeals preferred along with Exts.P9 to P12 petitions for stay. After considering the Interlocutory Applications for stay, the 3rd respondent/Appellate Authority passed Ext.P13 order dated 28.10.2013, granting interim stay, subject to satisfaction of 50% of the disputed liability during pendency of the appeal. Admittedly, the said condition has not been satisfied.
5. Pursuant to the order passed by this Court on 04.12.2013, directing the petitioner to produce a copy of the representation referred to in Ext.P14, I.A. No.16820 of 2014 has been filed, producing a copy of the same along with some other documents. On going through the additional documents and contents of the affidavit, this Court finds that the representation preferred by the petitioner was prior to issuance of Ext.P13 order and as such, it cannot be said that the petitioner had approached the Government, suppressing the existence of Ext.P13 interim W.P.(C) No.32197 of 2014 4 order. The learned counsel for the petitioner also points out that, no hearing was conducted by the 1st respondent before passing Ext.P14 and as such, there was no chance, need, necessity or occasion for the petitioner to have brought Ext.P13 to the notice of the 1st respondent.
6. In the above facts and circumstances, this Court does not find it necessary to take any further steps with regard to the course and conduct being pursued by the petitioner. Now coming to the merits involved, it is to be seen that, the petitioner has already moved the Appellate Authority and obtained Ext.P13 interim order. The condition imposed by the Appellate Authority is still to be satisfied. In other words, Ext.P13 order stands as it is. Absolutely no provision is brought to this Court, as vested upon the 1st respondent, to have interfered with the orders passed by the quasi-judicial authorities, though it may be open for the 1st respondent to decide whether the machinery available under the Revenue Recovery Act should be set in motion to realise the dues to the Government, considering the merits of each case. This Court does not intend to express anything in this W.P.(C) No.32197 of 2014 5 regard, but for observing that the orders passed by the quasi- judicial authorities as mentioned above could not have been varied or modified by any procedure, which is not known to law. It may be due to the fact that the 1st respondent was also not aware of Ext.P13 order passed by the Appellate Authority as on the date of passing Ext.P14. In any view of the matter, the petitioner cannot have any relief in the present writ petition.
Accordingly, interference is declined and the writ petition is dismissed.
P.R. RAMACHANDRA MENON, JUDGE sp