IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C).No. 28238 of 2008(J)
1. ALEXANDER MARKOSE,
... Petitioner
Vs
1. THE STATE OF KERALA, REPRESENTED BY
... Respondent
2. THE REGIONAL TRANSPORT OFFICER,
3. THE SPECIAL TAHSILDAR
4. N.K.KRISHNA PILLAI,
5. JOSHY ITTICHERIYA, CHUNGATHU (HOUSE),
6. M.JOHNYKUTTY, FAMILY APOSTOLATE
For Petitioner :SRI.JESWIN P.VARGHESE
For Respondent :GOVERNMENT PLEADER
The Hon'ble MR. Justice K.M.JOSEPH
Dated :20/10/2008
O R D E R
K.M.JOSEPH, J.
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WP.(C) No. 28238 of 2008
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Dated this the 20th day of October, 2008
JUDGMENT
I heard learned counsel for the petitioner and the learned
Government Pleader.
2. Petitioner challenges Ext.P5. Ext.P5 is a notice issued under
the Revenue Recovery Act. The notice is issued for recovery of the tax due.
It is stated that the notice is issued without hearing the petitioner and
without perusing the documents. Petitioner approached this court earlier
and Ext.P3 judgment was rendered. This court directed that the petitioner
ought to have been heard in opposition to Ext.P3 demand particularly when
distress action was proposed. This court directed that a decision to be taken
after hearing the petitioner.
3. The question relates to the payment of tax under the Motor
Vehicle Taxation Act. According to the petitioner, petitioner was not the
registered owner and the liability to remit the tax lies with the registered
owner only. According to the petitioner he paid tax for the period for which
he was in possession of the vehicle. According to the petitioner, petitioner
had sold the vehicle to the fifth respondent on 30.1.1990 vide Ext.P1. The
transferee sold it to the sixth respondent by another agreement and it was
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after 12 years that Ext.P2 came to be issued, which came to be interfered
with, as already noted in Ext.P3 judgment. There was a notice of hearing
and petitioner submits that petitioner gave Ext.P4.
4. A statement has been filed, in which it is inter alia stated as
follows:
Pursuant to the judgment there was a hearing. KRE 5121 is a
stage carriage, which stands in the name of one Sri.N.K.Krishna Pillai, the
fourth respondent. Petitioner purchased it as per agreement dated 22.2.1989
and he sold it to Sri.Joshy Ittecheria, the fifth respondent by agreement
dated 30.1.1990. The arrears is for the period from 1.1.1990 to 31.3.1990.
It is stated that the petitioner was heard on 11.12.2007 and he admitted that
he was the possessor of the vehicle from 22.2.1989 to 30.1.1990. The fifth
respondent was also heard. It was stated that there was an agreement dated
31.1.1990 with the sixth respondent, but the vehicle was never in his
possession and the vehicle had been taken possession of by the Secretary,
AITUC due to some labour problems. It is stated that the whereabouts of
the vehicle is not known.
5. Petitioner has filed a reply affidavit. It is stated that the
petitioner was not heard, though he was present on three days and the
representation was not perused. He stated that though he made earnest
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efforts, he is unable to trace out receipt for the remittance of tax on
1.1.1990. It is stated that proceedings is time barred.
6. I heard learned counsel for the petitioner and the learned
Government Pleader. Petitioner reiterates his contentions.
7. As far as the contention that proceedings are barred by
limitation, I see no merit in the said contention. No doubt proceedings
under the Revenue Recovery Act cannot be pressed into service for
recovering a barred debt. But here, the liability of the petitioner, which is
sought to be realised is liability to pay tax under the Act. The amount is due
to the Government. A civil suit to be filed by the Government can be
instituted within thirty years from the date on which cause of action arose.
Passage of 12 years is barely insufficient in a case where the period is thirty
years. I would think that there is no merit in the said contention. The
petitioner was in possession of the vehicle till 30.1.1990. In fact the case
itself is that he has paid the amount, but he cannot locate the receipt.
Therefore, even assuming that he was not heard as such, not much store be
laid by that contention because taking the facts as they stand, it is clear that
the petitioner was in possession of the vehicle as on 30.1.1990, when he is
alleged to have executed the agreement in favour of the fifth respondent.
The liability to pay tax commences on the first day of the month, that is he
WPC.28238/2008. 4
cannot extricate himself from the liability to pay tax for the quarter in
question. Petitioner is not in a position to produce any evidence also. This
means that the recovery is directed for realising the amount, which can be
legally said to be due from the petitioner. In such circumstances, there is no
merit in the contention. Learned counsel for the petitioner prays that the
petitioner may be given instalments. I feel that, that request can be acceded
to. Having regard to the distance of time, petitioner is permitted to pay the
entire amount due in five equal monthly instalments, first of which shall be
payable on or before 20.11.2008 and further instalments on or before the
20th of the succeeding months. If any instalment is not paid, petitioner will
lose the benefit of this judgment and it will be open to the respondent to
proceed with the recovery.
(K.M. JOSEPH, JUDGE)
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