A.M.Sadeeque vs Assistant Commissioner (Assmt) … on 19 January, 2009

       

  

  

 
 
  IN THE HIGH COURT OF KERALA AT ERNAKULAM

WA.No. 62 of 2009()


1. A.M.SADEEQUE, XL/4456.
                      ...  Petitioner

                        Vs



1. ASSISTANT COMMISSIONER (ASSMT) II
                       ...       Respondent

2. DEPUTY TAHSILDAR (RR)

3. STATE OF KERALA, REPRESENTED BY ITS

                For Petitioner  :SRI.N.MURALEEDHARAN NAIR

                For Respondent  : No Appearance

The Hon'ble the Acting Chief Justice MR.J.B.KOSHY
The Hon'ble MR. Justice V.GIRI

 Dated :19/01/2009

 O R D E R

J.B. Koshy,Ag.C.J. & V. Giri, J.

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W.A. No. 62 of 2009

—————————————
Dated this the 19th day of January, 2009

Judgment

Koshy,Ag.C.J.

Appellant/Petitioner is the Managing Director of a private

limited company. The above private limited company was in arrears

of sales-tax dues. That is not disputed. Ext.P2 recovery notice was

issued. In Ext.P2, defaulter’s name is shown as the company and it

is addressed to the petitioner as he is the Managing Director of the

company. The learned Judge after considering the decision of the

Hon’ble Supreme Court in Commissioner of Income Tax v. Sree

Meenakshi Mills Ltd and others (63 ITR 609) and McDowell and Co.

Ltd. v. Commercial Tax Officer (154 ITR 148) held that even the

liability due from the company can be recovered from the persons

who were the beneficiaries of the company. The learned Judge also

stated that the petitioner has not disclosed the shareholding pattern

of the company. After the judgment, that is not disclosed even in

writ appeal and it is purely a private limited company. Even though

petitioner challenged the validity of section 26C of the Kerala

General Sales Tax Act, the learned Judge found that even without

W.A. No. 62/2009 2

reference to section 26C, recovery proceedings will lie. Apart from

the above, petitioner obtained instalment facility from the

Government, but, he did not pay the tax. Therefore, there is no

reason to exercise the discretionary powers under the extra-

ordinary jurisdiction of this court. The learned Judge further noticed

that first the assets of the company should be proceeded with.

In these circumstances, we fully agree with the learned

single Judge and appeal is dismissed.

J.B.Koshy
Acting Chief Justice

V. Giri
Judge

vaa