BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 07/09/2010 CORAM THE HON'BLE MR.JUSTICE M.JAICHANDREN Writ Petition(MD)No.11637 of 2010 and M.P.(MD) No. 1 of 2010 S.Venkatasubbu .. Petitioner Versus 1.The Commercial Tax Officer, Chokkikulam Circle, Madurai-20. 2.M/s.Austin Infotech, Represented by its Managing Partner N.Rathnakumar, A-3/4, 80 Feet Road, K.K.Nagar, Madurai-20. 3.N.Rathnakumar .. Respondents. Prayer Petition filed under Article 226 of the Constitution of India praying for the issuance of a Writ of Certiorari, calling for the records relating to the impugned Distraint Order, dated 13.08.2010, in Form No.1 under Section 8 passed by the first respondent in his proceedings in ROC No.1649/09/A3/5001661/02-03 and quash the same. !For petitioner ... Mr.B.Prahalad Ravi ^For respondent 1 ... Mr.Pala Ramasamy Special Government Pleader :ORDER
This writ petition has been filed praying that this Court may be pleased
to issue a writ of certiorari, to call for and quash the proceedings of the
first respondent, dated 13.08.2010.
2. Mr.Pala Ramasamy, the learned Special Government Pleader takes notice
for the first respondent.
3. The main contention of the learned counsel appearing on behalf of the
petitioner is that the first respondent had passed the impugned order, dated
13.08.2010, attaching the property in question, invoking Section 8 of the Tamil
Nadu Revenue Recovery Act, 1864, even though the said property does not belong
to him and that the petitioner is not a partner in the second respondent firm.
It has been further stated that the property in question, which has been
attached, pursuant to the impugned order of the first respondent, dated
13.08.2010, belongs to the petitioner’s mother. He had also submitted that the
petitioner is in possession and enjoyment of the said property, pursuant to a
deed of sale executed on 04.05.2000. Therefore, the impugned order of the first
respondent is arbitrary, illegal and void.
4. Per contra, Mr.Pala Ramasamy, the learned Special Government Pleader,
appearing for the first respondent had submitted that the impugned order of the
first respondent, dated 13.08.2010, is not a distraint order, as claimed by the
petitioner. The said order has been passed by the first respondent as it was
found that the petitioner was liable for a sum of Rs.4,22,805/-, as assessed in
respect of the assessment year 2002-03, when the petitioner was a partner of the
second respondent firm. He had also submitted that the petitioner has no locus
standi to file the writ petition as the property sought to be attached by the
impugned order of the first respondent, dated 13.08.2010, belongs to one
Ms.Vanaja, who is not a party to the present writ petition. In such
circumstances, the writ petition is devoid of merits and, therefore, it is
liable to be dismissed.
5. In view of the submissions made by the learned counsels appearing on
behalf of the petitioner, as well as the respondent and as it has been submitted
by the Special Government Pleader, appearing on behalf of the first respondent,
that the impugned order of the first respondent, dated 13.08.2010, is only a
demand notice, the petitioner is permitted to submit his explanation to the
first respondent, within a period of fifteen days from today, along with all
relevant documents. On receipt of such explanation, the first respondent is
directed to pass appropriate orders thereon on merits, in accordance with law
and, after giving an opportunity of hearing to the petitioner.
6. It has been submitted by learned Special Government Pleader appearing
on behalf of the first respondent that the property in question would not be
brought for sale, under Section 9 of the Tamil Nadu Revenue Recovery Act, 1864,
till an order is passed by the first respondent.
Accordingly, the writ petition is disposed of with the above directions.
No costs. Consequently, connected miscellaneous petition is closed.
srm
To
1.The Commercial Tax Officer,
Chokkikulam Circle,
Madurai-20.
2.M/s.Austin Infotech,
Represented by its
Managing Partner N.Rathnakumar,
A-3/4, 80 Feet Road,
K.K.Nagar,
Madurai-20.