IN THE HIGH COURT OF KERALA AT ERNAKULAM
RSA.No. 296 of 2008()
1. V.T.THOMAS, S/O.THOMAS, AGED 51 YEARS,
... Petitioner
Vs
1. STATE OF KERALA,
... Respondent
2. THE TAHSILDAR, KUNNATHUNAD TALUK,
3. THE SALES TAX OFFICER, IIND CIRCLE,
For Petitioner :SRI.ALEXANDER JOSEPH
For Respondent : No Appearance
The Hon'ble MR. Justice K.P.BALACHANDRAN
Dated :22/05/2008
O R D E R
K.P. BALACHANDRAN, J.
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R.S.A. No 296 of 2008
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Dated this the 22nd May 2008
JUDGMENT
Appellant is the plaintiff in O.S. No 246 of 2007 on the file of the Munsiff’s
Court, Perumbavoor. He filed that suit for a decree of permanent prohibitory injunction
restraining the respondents from proceeding with revenue recovery steps as against him
for recovery of sales tax arrears. He is a timber merchant at Pulluvazhi and a registered
dealer under the Kerala General Sales Tax Act. According to him, the third defendant
Sales Tax Officer made several arbitrary and unrealistic assessments on sales turnover
in his business and assessed exorbitant amounts as sales tax on him for the year 1984-85
and for the subsequent years; that the said assessment orders were challenged in
appeals, that in the meanwhile second respondent initiated revenue recovery
proceedings against him for recovery of amounts assessed by the third respondent; that
all the appeals filed by him against the assessments made by the third respondent were
allowed and the assessments made by the third respondent were set aside and no amount
is due towards sales tax from him and that the demand made by the second respondent
is fraudulent and therefore a decree of permanent prohibitory injunction has to be
granted restraining the respondents from recovering Rs 73,954/- which represents the
amount illegally claimed from him by way of sales tax arrears and also restraining the
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attachment and sale of the movable and immovable properties belonging to
him.
2. The suit was resisted by the second defendant filing written
statement on behalf of defendants 1 to 3. According to the respondents, the
appellant is a defaulter of sales tax and revenue recovery proceedings were
initiated for recovery of sales tax arrears and the suit filed challenging the
revenue recovery proceedings is hit by Section 72 of the Kerala Revenue
Recovery Act; that the appellant has approached the civil court without
resorting to the alternate remedy provided under the Kerala General Sales
Tax act and hence the suit is hit by Section 41 (h) of the Specific Relief Act;
that an amount of Rs 73,958/- is due from the appellant as sales tax arrears
and penalty and revenue recovery certificate for realisation of the said
amounts is pending and the suit is hit also by Section 49 of the Kerala
General Sales Tax Act.
3. The trial court considered the maintainability of the suit in view of
Section 72 of the Kerala Revenue Recovery Act that a suit can be brought
before a civil court in respect of any question covered by Section 72 of the
Act only on the ground of fraud. The counsel for the appellant has placed
before me a copy of the plaint and I had occasion to go through the
averments in the plaint and I see absolutely no averment as regards the
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existence of any fraud. The case of the appellant is that the assessment
made by the third respondent has been set aside in appeal by the Sales Tax
Appellate Authority. There is absolutely no evidence adduced by the
appellant to show that the assessment orders were set aside in appeal. No
document is produced also along with the plaint and even the number of the
tax appeals filed against the assessment orders passed by the third
respondent are not mentioned. The suit has been filed without any
document to substantiate the contentions advanced by the appellant. The
suit is in effect one to restrain the recovery of sales tax arrears due from the
appellant under the assessment orders passed by the third respondent.
Hence in view of Section 49 of the Kerala General Sales Tax Act the suit is
not maintainable as rightly found by the trial court. It is also seen that for
similar relief O.S. No 121 of 1989 was filed by the appellant before the
same trial court on an earlier occasion and that was abandoned. Counsel
submits that the said suit was abandoned as the assessment orders were set
aside in appeals. However, there is no evidence to substantiate that aspect.
There is presumption also under Section 114 of the Evidence Act regarding
correctness of official acts. If at all assessment orders were set aside,
naturally the proceedings for recovery of arrears by the revenue authorities
would have been recalled. No such thing was done in the instant case only
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for the reason that the assessment orders had become final. Appellant has
approached the civil court with no document and making false allegations
and the suit was rightly found by the trial court to be not maintainable.
First appeal filed by the appellant challenging the order of the trial court on
issue No. 1 holding that the suit is not maintainable and consequently
dismissing the suit was upheld and the appeal was dismissed. There is
absolutely no question of law and much less any substantial question of law
to be considered by this court. In the circumstances, the R.S.A is devoid of
merit and is dismissed in limine refusing admission.
Sd/-
K.P.BALACHANDRAN
Judge
22/05/08
en
Order on I.A 751 of 2008
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Dismissed.
Id./- K.P. Balachandran, Judge
22/05/08
[true copy]