IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C).No. 29875 of 2008(F)
1. MRS. S. NAGAMANICKKAM,
... Petitioner
Vs
1. THE SALES TAX OFFICER,
... Respondent
2. THE TAHSILDAR (REVENUE RECOVERY),
For Petitioner :SRI.DEVAN RAMACHANDRAN
For Respondent : No Appearance
The Hon'ble MR. Justice K.M.JOSEPH
Dated :07/11/2008
O R D E R
K.M.JOSEPH, J.
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WP.(C) No.29875 of 2008
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Dated this the 7th day of November, 2008
JUDGMENT
Petitioner challenges Exts.P5 and P9. The further prayer is to
direct the respondents not to proceed against Ext.P6 properties of the
petitioner on the basis of Ext.P5 order. The case of the petitioner in brief is
as follows:
Petitioner is the Managing Director of a Company. According
to the petitioner it is a public limited company. Petitioner in this regard
relies on Ext.P1. It is the case of the petitioner that originally it was a
private limited company when it was incorporated in November, 1992, But
consequent on enhancement of its share capital, it became a public limited
company in October, 1993 and this is reflected in Ext.P1. Assessment
orders were passed for the assessment years 1995-96, 1996-97 and 1997-98.
Appeals were carried to the Tribunal, which came to be allowed by Ext.P3
order. Against the assessment orders for the years 1998-99 and 1999-2000
the company preferred appeals before the first appellate authority. The first
appellate authority allowed those appeals and the matter was taken to the
Tribunal, which came to be dismissed by Ext.P4.
WPC. 29875/2008. 2
2. The complaint is that attachment came to be made of the
personal property of the petitioner, who was the Managing Director, by
Ext.P5. Petitioner preferred Exts.P7 and P8 and thereafter Ext.P9 came to
be passed. In Ext.P9 the decision proceeds apparently on the basis that the
petitioner is not a public limited company.
3. I heard learned counsel for the petitioner Sri.Devan
Ramachandran and the learned Government Pleader Sri.C.K.Govindan.
4. Learned counsel for the petitioner points out that there
cannot be any manner of doubt after perusal of Ext.P1 that the Company in
question is a public limited company and not a private limited company
during the relevant period. Though it was a private limited company, on
consequent enhancement it became a public limited company with effect
from October, 1993, he contends. Of course learned Government Pleader
referred to the provisions contained in Section 22(4) of the Kerala General
Sales Tax Act and contended that as per the said provision the petitioner is
actually liable. There is no whisper about Section 22(4) in Ext.P9 order.
5. After having gone through Ext.P9 order, I feel that there is
no reference to the relevant material, in particular Ext.P1. Nor is there
advertence to the legal provisions applicable, which the learned counsel for
the petitioner brings to my notice as Section 21 and Section 43A of the
WPC. 29875/2008. 3
Companies Act. In such circumstances, I am constrained to quash Ext.P9.
Accordingly Ext.P9 is quashed. The second respondent will
reconsider and take a decision afresh on Exts.P7 and P8 taking note of
Ext.P1 and adverting to the relevant provisions of law with opportunity of
hearing to the petitioner as also the first respondent. A decision will be
taken within three weeks from today. In order to facilitate an early
decision, petitioner or his representative and the first respondent will be
present before the second respondent at 11 a.m on 14.11.2008.
The writ petition is disposed of as above.
(K.M. JOSEPH, JUDGE)
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