IN THE HIGH COURT OF KERALA AT ERNAKULAM
RP.No. 687 of 2009(H)
1. V.MOHAMMED NIZABUDHEEN,NAMMANDA HOUSE,
... Petitioner
Vs
1. COMMISSIONER OF COMMERCIAL TAXES,
... Respondent
2. INTELLIGENCE OFFICER(IB)II,OFFICE OF THE
3. P.MOHAMMED,S/O.ALAVI HAJI,AGED 60 YEARS,
4. P.SIDHIQUE PANDIKASALA,S/O.NOORDEEN,
5. ABINAYAA IMPORTS AND EXPORTS,NO.26 -9,
6. TAHSILDAR,ERANAD,MANJERI.
7. VILLAGE OFFICER,VAZHAKKAD,
For Petitioner :SRI.G.HARIHARAN
For Respondent : No Appearance
The Hon'ble MR. Justice P.R.RAMACHANDRA MENON
Dated :07/08/2009
O R D E R
P.R. RAMACHANDRA MENON, J.
........................................................................
R.P. No. 687 OF 2009 IN
WP.(C) 17917 OF 2009
& W.P.(C) 17917 OF 2009
.........................................................................
Dated this the 7th August, 2009
O R D E R
The Writ Petitioner, who is one of the partners of the 5th
respondent-Firm, (of which, the respondents No. 3 and 4 are
the other partners) has approached this Court challenging Exts.
P7 and P8 revenue recovery proceedings initiated at the
instance of the 9th respondent (who is stated as having no
connection with the petitioner at all); simultaneously seeking for
a direction to consider Ext.P6 petition for early hearing of the
Revision Petition, stated as filed before the first respondent –
Commissioner.
2. When the matter came up for admission before this
Court, the coercive proceedings were intercepted on condition
that the petitioner remitted a sum of Rs.Two lakhs within two
weeks. However, the petitioner, instead of remitting the said
R.P. No. 687 OF 2009 IN WP.(C) 17917 OF
2009 & W.P.(C) 17917 OF 2009
2
amount, has chosen to approach this Court by filing the present
Review Petition, also producing two assessment orders passed
by the 9th respondent against the 8th respondent as Annexures2
and 3, pointing out that Exts. P7 and P8 revenue recovery
proceedings are actually in respect of Annexures 2 and 3, as
aforesaid and hence that the said coercive steps stated as being
pursued against the petitioner in respect of the dues payable by
the 8th respondent are not correct or sustainable.
3. The learned Government Pleader, with reference to the
contents of the counter affidavit filed on behalf of the
respondent Nos.2 and 9, submits that the proceedings taken by
the 9th respondent against the 8th respondent as per Annexures
2 and 3 and the proceedings taken by the departmental
authorities against the petitioner are entirely different. It is also
asserted that Exts.P7 and P8 revenue recovery proceedings
initiated against the petitioner are in respect of the amounts
due towards the penalty imposed vide Ext.P2 order and
inclusive of the protective assessment order passed by the
R.P. No. 687 OF 2009 IN WP.(C) 17917 OF
2009 & W.P.(C) 17917 OF 2009
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second respondent under the relevant provisions of law, when
the 8th respondent denied the transaction (as having purchased
Timber from the petitioner, stated as effected as per the
records/Books of Accounts of the petitioner). The learned
Government Pleader also submits that, all the files and
proceedings forming the subject matter of Ext. P2 were also
forwarded to the 9th respondent for completing the formalities
and it was accordingly, Requisition bearing No.RRC.23/2008
dated 29.10.2008 was issued by the 9th respondent leading to
Exts. P7 and P8 revenue recovery steps. This being the
position, there is absolutely no merit or bonafides in the
submission made from the part of the Writ petitioner/Review
petitioner and that the prayers in the Writ Petition as well as in
the Review Petition are not liable to be entertained, submits the
learned Government Pleader.
4. It remains to be an undisputed fact that the petitioner
sustained Ext. P2 penalty order imposed by the second
respondent, which was sought to be challenged by filing a
R.P. No. 687 OF 2009 IN WP.(C) 17917 OF
2009 & W.P.(C) 17917 OF 2009
4
revision petition before the Deputy Commissioner of Commercial
Taxes, Kozhikode, before whom, he lost the battle. Met with the
said circumstances, the petitioner preferred the second Revision
before the first respondent and one of the prayers raised in the
Writ Petition was for a direction to consider and pass appropriate
orders on Ext. P6 petition filed before the first respondent for
early hearing of the second Revision Petition.
5. The learned counsel for the petitioner conceded that no
petition for stay has been preferred before the first respondent;
simultaneously adding that it was only because of the reason
that no revenue recovery proceedings were stated as being
pursued against the petitioner at that point of time.
6. It is very much evident from Ext. P2 order passed by the
second respondent that the said proceeding takes in, the
‘penalty’ as well as the ‘tax amount’ . Of course, there is a
contention for the petitioner that the second respondent does not
have any power, jurisdiction or competence to fix the tax, which
has been rebutted from the part of the respondents in their
R.P. No. 687 OF 2009 IN WP.(C) 17917 OF
2009 & W.P.(C) 17917 OF 2009
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counter affidavit, referring to G.O. (MS)No. 158/2002/TD (SRO .
1046/2002 Dated 25.10.2002) asserting that the Intelligence
Officer has all the powers of the assessing authority under the
KGST Act and has jurisdiction throughout the State of Kerala. In
any view of the matter, this aspect is also stated as the subject
matter of consideration before the first respondent in the second
Revision Petition stated as pending before him. This being the
position, the liability of the petitioner to satisfy the amount
covered by Ext.P2 will, of course, depend upon the outcome of
the second Revision Petition; which however has not been sought
to be stayed, by filing any petition.
7. To have a finality to the issue projected before this
Court in the Writ Petition as well as in the Review Petition, the
first respondent is directed to consider the Revision Petition filed
by the petitioner as referred to in Ext. P6 and to finalise the
same in accordance with law, after giving an opportunity of
hearing to the petitioner, as expeditiously as possible and at any
rate within two months from the date of receipt of a copy of the
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2009 & W.P.(C) 17917 OF 2009
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judgment. It is also made clear that all coercive proceedings
now stated as being pursued, pursuant to Exts. P7 and P8 shall
be kept in abeyance on condition that the petitioner deposits a
sum of Rs. Two lakhs as ordered by this Court vide interim
order dated 30.06.2009 while admitting the Writ Petition.
However, the time to effect the deposit, as above , is hereby
enlarged and the petitioner shall effect the same within a
further period of three weeks.
Both the Writ Petition as well as the Review Petition are
disposed of accordingly.
P.R. RAMACHANDRA MENON,
JUDGE.
lk