Kerala High Court
Sushil Vijoy Arora vs State Of Kerala on 14 July, 2007
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN
WEDNESDAY, THE 25TH DAY OF JUNE 2014/4TH ASHADHA, 1936
WP(C).No. 28135 of 2006 (Y)
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PETITIONERS :
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1. SUSHIL VIJOY ARORA,
J.M. TOWERS, 7C, P.T. ROAD
VADUTHALA, ERNAKULAM, KOCHI-682 023.
2. GEORGE ABRAO,
"MARY DALE", PERUMBATTA ROAD, ELAMAKKARA,
ERNAKULAM, KOCHI-682 026.
BY ADVS.SRI.A.ANTONY
SMT.LEELAMMA ANTONY
RESPONDENTS :
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1. STATE OF KERALA,
REPRESENTED BY DISTRICT COLLECTOR, ERNAKULAM.
2. THE TAHSILDAR,
TALUK OFFICE, KUNNATHUNAD, PERUMBAVOOR.
3. M.L. MATHAI,
PARTNER OF "PANCHAMI OIL MILLS", MENACHERRY HOUSE,
MATTOOR KARA, MATTOOR VILLAGE, ALUVA TALUK,
ERNAKULAM DISTRICT.
4. KUNJUMOL MATHAI,
PARTNER OF "PANCHAMI OIL MILLS", MENACHERRY HOUSE,
MATTOOR KARA, MATTOOR VILLAGE, ALUVA TALUK,
ERNAKULAM DISTRICT.
5. M.V. YOHANNAN,
PARTNER OF "PANCHAMI OIL MILLS", MENACHERRY HOUSE,
MATTOOR KARA, MATTOOR VILLAGE, ALUVA TALUK,
ERNAKULAM DISTRICT.
6. M.V. BABY,
PARTNER OF "PANCHAMI OIL MILLS", MENACHERRY HOUSE,
MATTOOR KARA, MATTOOR VILLAGE, ALUVA TALUK,
ERNAKULAM DISTRICT.
WP(C).No. 28135 of 2006 (Y)
7. M.V. THOMAS,
PARTNER OF "PANCHAMI OIL MILLS", MENACHERRY HOUSE,
MATTOOR KARA, MATTOOR VILLAGE, ALUVA TALUK,
ERNAKULAM DISTRICT.
8. TRANSWORLD OIL MANUFACTURING PVT.LTD.,
REGISTERED OFFICE AT TRANSWORLD HOUSE NO.33, IX LANE,
DR.RADHAKRISHNA SALAI, MYLAPORE, CHENNAI-600 004.
9. TEJUS OIL (P) LTD.,
AEC NAGAR, AIMURY, KOOVAPPADY,
PERUMBAVOOR, ERNAKULAM DISTRICT.
R1 & 2 BY GOVERNMENT PLEADER SMT. SHOBA ANNAMMA EAPEN
R3 TO R7 BY ADVS. SRI.GEO PAUL
SRI.SANU MATHEW
SRI.C.R.PRAMOD
R8 & R9 BY ADV. SRI.C.K.THANU PILLAI
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD
ON 25-06-2014, THE COURT ON THE SAME DAY DELIVERED
THE FOLLOWING:
BP
WP(C).No. 28135 of 2006 (Y)
APPENDIX
PETITIONER'S EXHIBITS :
P1: COPY OF SALE DEED NO. 6105 OF 2004 DT 5/11/2004 OF PERUMBAVOOR SRO.
P2: COPY OF SALE DEED NO. 6104 OF 2004 DT 5/11/2004 OF PERUMBAVOOR SRO.
P3: COPY OF THE ENCUMBRANCE CERTIFICATE DT 12/8/2004 ISSUED BY THE
PERUMBAVOOR SRO.
P4: COPY OF SALE DEED NO.6171/2003 DT 17/12/2003 OF PERUMBAVOOR SRO.
P5: COPY OF SALE DEED NO. 2033/2004 DT 6/4/2004 OF PERUMBAVOOR SRO.
P6: COPY OF NOTICE DT 4/8/2006 OF THE R2 SENT TO THE PETITIONERS &
OTHERS.
P7(A): COPY OF REPLY DT 17/8/2006 TO THE EXT P6 SUBMITTED BY THE 1ST
PETITIONER
P7(B): COPY OF REPLY DT 17/8/2006 TO THE EXT P6 SUBMITTED BY THE 2ND
PETITIONER.
P8: COPY OF ORDER DT 19/9/2006 OF THE R2.
P9: COPY OF COMMUNICATION BEARING NO. 23131712/2010-11 DT 26/4/2010. OF
THE COMMERCIAL TAX OFFICER 1ST CIRCLE ADDRESSED THE R2.
P10: COPY OF COMMUNICATION BEARING NO. 23131711/2010-11 DT26-4-2010 OF
THE COMMERCIAL TAX OFFICER 1ST CIRCLE ADDRESSED THE R2.
RESPONDENT'S EXHIBITS :
EXT.R9(1): COPY OF ORDER NO. 23131711/97-98 DT 3/2/2005 ISSUED BY ADDL.
SALES TAX OFFICER II, 1ST CIRCLE, PERUMBAVOOR.
EXT.R9(2): COPY OF NOTIFICATION SRO NO.417/2007/TD DT 10/5/2007 ISSUED BY
THE R1.
EXT.R9(3): COPY OF ADDITIONAL GROUNDS IN APPEAL DT 14/7/2007
PRESENTED BEFORE THE SALES TAX APPELLATE TRIBUNAL.
EXT.R9(4): COPY OF ADDITIONAL GROUNDS IN APPEAL DATED 14/7/2007
PRESENTED BEFORE THE SALES TAX APPELLATE TRIBUNAL.
EXT.R9(5): COPY OF ADDITIONAL GROUNDS IN APPEAL DT 14/7/2007 PRESENTED
BEFORE THE DEPUTY COMMISSIONER (APPEAL).
EXT.R9(6): COPY OF LETTER AND DRAFT DT 4/3/2004 PRESENTED BEFORE THE
SALES TAX OFFICER, IST CIRCLE, PERUMBAVOOR.
EXT.R9(7): COPY OF ORDER NO.R1-10170/06/TX DT 23/6/2007 ISSUED BY THE
COMMISSIONER OF COMMERCIAL TAXES.
WP(C).NO. 28135 OF 2006 (Y)
EXT.R9(8): COPY OF ORDER NO. 23130818/90-91 DT 31/10/1998 ISSUED BY THE
SALES TAX OFFICER, 1ST CIRCLE, PERUMBAVOOR.
EXT.R9(9): COPY OF ORDER NO. 23130818/91-92 DT 26/6/2000 ISSUED Y THE
ADDL. SALES TAX OFFICER, 1ST CIRCLE, PERUMBAVOOR.
EXT.R9(10): COPY OF LETTER DT 18/9/2000 PRESENTED TO THE SALES TAX
OFFICER, 1ST CIRCLE, PERUMBAVOOR.
EXT.R9(11): COPY OF ORDER NO. 23130818/95-96 DT 22/6/1999 ISSUED BY THE
SALES TAX OFFICER, 1ST CIRCLE, PERUMBAVOOR.
EXT.R9(12): COPY OF LETTER DT 18-01-2005 PRESENTED TO THE R2.
EXT.R9(13): COPY OF MEMORANDUM OF ASSOCIATION OF R9.
EXT.R9(14): COPY OF MEMORANDUM OF ASSOCIATION OF THE R8.
ADDL.EXT.R9(15): COPY OF ORDER NO. 23131711/99-2000 DT 15/12/2007 ISSUED
BY THE COMMERCIAL TAX OFFICER FIRST CIRCLE,
PERUMBAVOOR.
ADDL.EXT.R9(16): COPY OF ORDER NO. 23131711/2000-01 DT 15/1/2008 ISSUED
BY THE COMMERCIAL TAX OFFICER FIRST CIRCLE,
PERUMBAVOOR.
ADDL.EXT.R9(17): COPY OF ORDER NO. 23131711/01-02 DT 02/06/2008 ISSUED BY
THE COMMERCIAL TAX OFFICER FIRST CIRCLE,
PERUMBAVOOR.
//TRUE COPY//
P.S. TO JUDGE
BP
K. Vinod Chandran, J.
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W.P.(C).No.28135 of 2006-Y
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Dated this the 25th day of June, 2014
JUDGMENT
The petitioner in the writ petition challenges Exhibit P8 order of the Revenue Recovery Officer by which Exhibits P1, P2, P4 and P5 sale deeds were set aside as being violative of the prescription under Section 44 of the Kerala Revenue Recovery Act, 1968 [for brevity "the Act"] and the same having been perpetrated only to defeat the arrears of revenue due to the State.
2. The short facts necessary for the adjudication of the dispute is that the petitioners herein purchased certain landed properties by Exhibits P1 and P2 in the year 2004 from respondents 3 to 7. The respondents 3 to 7 purchased the property as per Exhibits P4 and P5 sale deeds from two Companies, one of which is the 8th respondent herein and another, being one M/s.Perumbavoor Oil Seed Expellers. Proceedings were taken against the 9th respondent for WP(C).No.28135 of 2006 - 2 - recovery of tax due, for the years 1997-1998, 1999-2000 and 2000-2001. In fact, the revenue recovery notices, as indicated in Exhibit P6; all of which, were generated in the year 2004 and 2005.
3. The sale by the respective Companies, as noticed above, to respondents 3 to 7 were on prior date, i.e., by Exhibit P4 and P5, both being sale deeds executed in the year 2003. A Division Bench decision of this Court, reported in Spl.Tahsildar v. Vasu [2006 (4) KLT 557] categorically declared that Section 44 of the Act would come into operation only after a demand notice is served. The sale made to respondents 3 to 7 were prior to the initiation of revenue recovery proceedings and, hence, is saved from the rigour of Section 44 of the Act.
4. The petitioner contends that the purchase of properties made by the respondents 3 to 7 from M/s.Perumbavoor Oil Seed Expellers will not in any way be liable for the sales tax dues of either the 8th respondent or the 9th respondent. The 8th respondent also is claimed to have no connection with the 9th respondent.
WP(C).No.28135 of 2006 - 3 -
5. In any event, that need not be gone into, since it is submitted that respondents 8 and 9 have settled the entire dues to the Sales Tax Department, which is evidenced by Exhibits P9 and P10 produced by the petitioners along with I.A.No.17727 of 2010.
For all the aforementioned reasons, Exhibits P8, which has set aside the sale deeds Exhibits P1, P2, P4 and P5, cannot be sustained. Exhibit P8, hence, stands set aside. Writ petition allowed. No costs.
Sd/-
K.Vinod Chandran Judge.
Vku/-
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