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Balan vs State Of Kerala And Ors. on 14 June, 1988

Kerala High Court
Balan vs State Of Kerala And Ors. on 14 June, 1988
Equivalent citations: 1990 79 STC 235 Ker
Author: T K Thommen
Bench: T K Thommen


JUDGMENT

T. Kochu Thommen, J.

1. The petitioner is now a salaried employee. In respect of certain business which he had conducted prior to his becoming an employee under the third respondent, sales tax became due from him under exhibit P2, assessment order for the year 1980-81. This was confirmed in appeal by exhibit P3. It is stated by the petitioner’s counsel that a second appeal is pending before the Sales Tax Tribunal. In the meantime an order is stated to have been issued by the second respondent under Section 25 of the Kerala General Sales Tax Act, 1963, directing the petitioner’s employer, the third respondent, “to recover and pay to the Sales Tax Officer, Chalakudy, a sum of Rs. 17,475 from any money due or which may become due” to the employee from the employer (See exhibit P4, letter of the third respondent to the petitioner). The third respondent accordingly intimated the petitioner that arrangements have been made with the pay section of their office in accordance with the direction (See exhibit P4).

2. The petitioner apprehends that pursuant to the direction under Section 25, the entire salary payable to the petitioner each month will be withheld for the purpose of recovering the sum directed to be recovered. Counsel for the petitioner submits that Section 25 of the Kerala General Sales Tax Act, unless read in such a way as to retain the benefit of Section 60, Code of Civil Procedure, 1908, as it is in fact the case under Section 226 of the Income-tax Act, 1961, will be draconian in effect. The petitioner has no other income and if his salary is completely withheld from him in purported compliance with Section 25 of the Kerala General Sales Tax Act, the petitioner, counsel points out, would be totally deprived of his livelihood, and such an action is contrary to the legislative intent, and, in any view, violative of the petitioner’s fundamental rights.

3. The order stated to have been issued under Section 25 has not been produced before me. The petitioner is naturally not in a position to produce that order, for he knows only what he was told by his employer by exhibit P4 letter. The Government ought to have produced that direction before this Court which it did not do. It would appear from the submissions of the Government Pleader that the Government only directed the employer to withhold a reasonable amount from the petitioner’s salary so as to recover in stages from the petitioner the tax due. I assume that it was not the intention of the department to issue a direction under Section 25 in such a way that the section would operate in a draconian manner by total deprivation of the employee’s salary. A reasonable recovery is possible only if it is limited in the manner provided under the proviso to Section 226(2) of the Income-tax Act. That sub-section and the proviso to it read :

“226. Other modes of recovery .–(1) ………………

(2) If any assessee is in receipt of any income chargeable under the head ‘salaries’, the Income-tax Officer may require any person paying the same to deduct from any payment subsequent to the date of such requisition any arrears of tax due from such assessee, and such person shall comply with any such requisition and shall pay the sum so deducted to the credit of the Central Government or as the Board directs :

Provided that any part of the salary exempt from attachment in execution of a decree of a civil court under Section 60 of the Code of Civil Procedure, 1908 (5 of 1908), shall be exempt from any requisition made under this sub-section.

…………………”

It is the principle of that proviso that the petitioner prays to be read into Section 25.

4. In so far as the submissions on behalf of the Government disclose that it was the intention of the recovering authority to recover only a reasonable amount by withholding from the petitioner’s salary a sum to the extent that was reasonable, it is unnecessary to consider the petitioner’s contention that the section, as it stands, is unconstitutional. In so far as the second respondent is deemed to have intended to recover under Section 25 only to the extent that it is permissible under Section 226(2) of the Income-tax Act, I direct respondents 2 and 3 to recover from the petitioner’s salary only to the extent that such recovery would be consistent with the extent of recovery of salary recognised under Section 60 of the Code of Civil Procedure, 1908.

5. The original petition is allowed in the above terms. No costs.

6. The fate of this original petition shall have no impact either on the petitioner’s appeal stated to be pending before the concerned authority or upon the permissible modes of recovery under law.

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