IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE C.N.RAMACHANDRAN NAIR & THE HONOURABLE MR. JUSTICE P.S.GOPINATHAN TUESDAY, THE 9TH FEBRUARY 2010 / 20TH MAGHA 1931 WP(C).No. 1894 of 2010(J) ------------------------- PETITIONER: --------------- T.VINOD KUMAR, TERA-8B, MALAVIKA, THIRUMULLAVARAM, KOLLAM. BY ADV. SRI.HARISANKAR V. MENON SMT.MEERA V.MENON RESPONDENTS: --------------- 1. AJITH K.MARTHANDAN, POORNIMA, BEHIND EYE HOSPITAL, VADAKKUMBHAGAM, KOLLAM-1. 2. DIJU RAMAKRISHNAN, AMBADI, CURZON NAGAR-157, CUTCHERRY WARD, KOLLAM-13. 3. PREETHI AJITH, POORNIMA, BEHIND EYE HOSPITAL, VADAKKUMBHAGAM, KOLLAM-1. 4. M/S.AISWARYA AGENCIES, LAKSHMI NADA, KOLLAM, REPRESENTED BY ITS MANAGING PARTNER. 5. COMMERCIAL TAX OFFICER, 3RD CIRCLE, KOLLAM. 6. COMMERCIAL TAX OFFICER (AUDIT ASSESSMENT), KOLLAM. 7. DY.TAHSILDAR (REVENUE RECOVERY) TALUK OFFICE, KOLLAM. 8. DISTRICT COLLECTOR, KOLLAM. R5 TO R8 BY G.P. SRI.MOHAMMED RAFIQ THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 09/02/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: APPENDIX PETITIONER'S EXHIBITS: P1: COPY OF PARTNERSHIP DEED T.1.8.1994. P2: COPY OF DEED BETWEEN PETITIONER AND RESPONDENTS 1 TO 3 DT.6.1.2006. P3: COPY OF NOTICE ISSUED BY R7 DT.11.6.2009. P4: .DO. .DO. P5: .DO. .DO. P6: COPY OF ASSESSMENT ORDER PASSED BY R6 DT.15.3.2008. P7: COPY OF NOTICE PUBLISHED IN MATHRUBHUMI DAILY DT.19.12.2009. P8: COPY OF REPRESENTATION SUBMITTED BY PETITIONER DT.1.1.2010. P9: .DO. DT.18.1.2010. TRUE COPY PS TO JUDGE C .N. RAMACHANDRAN NAIR & P.S. GOPINATHAN, JJ. -------------------------------------------- W. P. C. No. 1894 OF 2010 -------------------------------------------- Dated this the 9th day of February, 2010 JUDGMENT Ramachandran Nair, J. The challenge is against recovery proceedings for recovery of arrears of tax due from a firm of which petitioner was a partner. Admittedly petitioner retired from the firm on 6.1.2006 and the firm thereafter continued it's business for 1-1/2 years. The tax liability sought to be recovered relates partly to the period when petitioner was a partner. The total liability sought to be recovered is something below Rs. 3 lakhs. However, under interim orders of this Court, petitioner has remitted Rs. 1 lakh. Since the firm continued after petitioner's retirement, obviously recovery could have been made from the continuing partners. Government Pleader submitted that all the partners are proceeded against for recovery. Even though liability of the partners is joint and several, we feel on equitable ground recovery against the petitioner can be withheld for some time to see whether arrears could be recovered from continuing partners and if not possible 2 to proceed against the petitioner as well. This is because petitioner has already remitted Rs. 1 lakh under interim orders and substantial amount of liability is attributable to the period after petitioner retired from the firm. In the circumstances, WPC is disposed of directing the recovery authorities to withhold recovery proceedings against the petitioner for a period of three months from now and to proceed for recovery against other partners, and if balance arrears are recovered, to withdraw recovery proceedings initiated against the petitioner. Petitioner is free to collect details of assets of other partners and to furnish the same to the recovery authorities for proceeding with recovery. However, if arrears could not be recovered from other partners, then recovery could be continued against the petitioner and it is for the petitioner and other partners to settle their liability under the Partnership Deeds through separate proceedings. (C.N.RAMACHANDRAN NAIR) Judge. (P.S. GOPINATHAN) Judge. kk