IN THE HIGH COURT OF KERALA AT ERNAKULAM
WA No. 2229 of 2007()
1. MANGALY TIMBERS, PALAKKAD.
... Petitioner
2. MANGALY INDUSTRIES,
Vs
1. THE ADDITIONAL SALES TAX OFFICER,
... Respondent
2. THE SPECIAL DEPUTY TAHSILDAR (RR),
3. THE SUPERINTENDENT OF POLICE,
4. THE MANAGER,
5. M/S.HILL WOOD INDUSTRIES,
6. M/S HILL WOOD IMPORTS AND EXPORTS PVT
7. M/S.NATIONAL TIMBER TRADERS,
8. P.AHAMMEDKUTTY AND COMPANY,
9. DEPUTY COMMISSIONER (APPEALS),
10. THE SALES TAX APPELLATE TRIBUNAL,
11. THE DIRECTOR, VIGILANCE AND ANTI
12. THE COMMISSIONER OF COMMERCIAL TAXES,
13. P.MOIDEEN, PROPRIETOR,
For Petitioner :SRI.K.I.MAYANKUTTY MATHER
For Respondent : No Appearance
The Hon'ble the Chief Justice MR.H.L.DATTU
The Hon'ble MR. Justice K.T.SANKARAN
Dated :25/09/2007
O R D E R
H.L. DATTU, C.J. & K.T. SANKARAN, J.
...................................................................................
W.A. No. 2229 OF 2007
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Dated this the 25th September , 2007
J U D G M E N T
H.L. Dattu, C.J.:
Respondent Nos. 6 and 7 in the Writ Petition (C)No. 33646 of 2005 are
the appellants in this appeal.
2. The appellants only question a portion of the order passed by the
learned single Judge while disposing of the Writ Petition, by order dated
06.06.2007. The offending portion, that is pointed out by the learned counsel
for the appellants, is extracted below:
“Petitioner’s specific case is that respondents 5 to 10 accounted
their unaccounted purchases as made from petitioner by using
Form 18 issued in the name of the petitioner without his
knowledge. Pursuant to enquiry on these allegations
under orders of this Court, petitioner’s claim was
substantially found to be correct.” (emphasis is supplied.)
3. Thereafter, the learned single Judge has directed the Commissioner
of Commercial Taxes to nominate a person as the appellate authority for
disposal of the appeals pending against the assessment orders for the
assessment years 2001-02, 2002-03 and 2003-04.
4. We have heard Shri V.V. Asokan, learned counsel appearing for the
appellants, Shri K.B. Pradeep, learned Government Pleader for the Revenue
W.A. No. 2229 OF 2007
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and Shri V.P. Sukumar, learned counsel appearing for the petitioner in the Writ
Petition/13th respondent herein.
5. Shri V.V. Asokan, learned counsel appearing for the appellants
would submit that while relegating the parties to the appellate authority, there
was no reason for the learned single Judge to have expressed an opinion on
the merits of the case pleaded by the petitioner as well as the respondents in
the Writ Petition. Therefore, the learned counsel requests us to expunge the
aforesaid observation made by the learned single Judge in the course of the
impugned order.
6. In the instant case, the petitioner/13th respondent herein was before
this court inter alia questioning the recovery proceedings initiated by the
assessing authority for realisation of the arrears of tax for the assessment
years 2001-02, 2002-03 and 2003-04. It was the case of the petitioner/13th
respondent herein before this court that respondents Nos. 5 to 10 in the Writ
Petition had misused his name and also Form 18 and therefore, he is in no
way liable for payment of arrears of tax for the aforesaid assessment years.
7. The learned single Judge has not gone into the merits of the case.
But, has directed the appellate authority to be nominated by the
Commissioner of Commercial Taxes to dispose of the appeals filed by the
petitioner and others against the assessment orders. In our opinion, while
doing so, there was no reason for the learned single Judge to have expressed
any opinion on the merits of the contentions canvassed by the petitioner in the
Writ Petition. Therefore, that portion of the order passed by the learned single
W.A. No. 2229 OF 2007
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Judge , which would come in the way of respondents 6 and 7 in the Writ
Petition/appellants before us , requires to be expunged from the order passed
by the learned single Judge. Therefore, the following:
O R D E R
i) The Writ Appeal is disposed of.
ii) The offending portion in the order passed by the learned single
Judge is expunged.
iii) Now the appellate authority, to be nominated by the
Commissioner of Commercial Taxes, is directed to decide the appeals filed
by the petitioner in the Writ Petition/13th respondent herein, as well as others ,
on merits without reference to any one of the observations made by the
learned single Judge .
Ordered accordingly.
H.L. DATTU,
CHIEF JUSTICE.
K.T. SANKARAN,
JUDGE.
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