IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE C.K.ABDUL REHIM THURSDAY, THE 24TH MARCH 2011 / 3RD CHAITHRA 1933 WP(C).No. 1798 of 2011(Y) ------------------------- PETITIONER: ------------------ M/S.HOTEL SEA GATE, PATHADIPALAM, SOUTH KALAMASSERRY, COCHIN-22, REPRESENTED BY ITS PARTNER, SRI.NISHAD MATHEW. BY ADVS. SRI.A.MOHAMED MUSTAQUE SRI.K.R.AVINASH (KUNNATH) RESPONDENT(S): -------------------------- 1. THE TAHASILDAR, (RR) KANAYANNOOR TALUK, ERNAKULAM - 682011. 2. THE VILLAGE OFFICER, THRIKKAKARA NORTH VILLAGE, ERNAKULAM - 682030. 3. THE COMMERCIAL TAX OFFICER, KVAT CIRCLE-1, ERNAKULAM - 682031. 4. JOSE KURAIN, PANAMKUZHAKKAL, S.R.M.ROAD, ERNAKULAM COCHIN -18. 5. JOSE CYRIAC, PANAMKUZHAKKAL S.R.M.ROAD ERNAKULAM COCHI - 18. 6. MOTTI CYRIAC, PANAMKUZHAKKAL, S.R.M.ROAD, ERNAKULAM COCHIN -18. 7. P.C.ROY, PANAMKUZHAKKAL, SRM.ROAD, ERNAKULAM, COCHIN -18. 8. SAJI CYRIAC, PANAMKUZHAKKAL, S.R.M.ROAD ERNAKULAM, COCHIN -18. BY GOVERNMENT PLEADER SRI.V.K.SHAMSUDHEEN THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 25/03/2011, THE COURT ON 24/03/2011 DELIVERED THE FOLLOWING: VK C.K.ABDUL REHIM, J --------------------------------------- W.P(C) No.1798 of 2011-Y ---------------------------------------- Dated this the 24th day of March, 2011. J U D G M E N T The petitioner is a partnership firm, which was constituted with effect from 1.4.2005, as per Ext.P2 deed of partnership. There were five partners as per Ext.P2. Ext.P1 is the partnership deed of another firm namely M/s.K.C.Thomas & Company (hereinafter referred to as the 'old firm'). The said firm was constituted with effect from 10.2.2004, with an objective of taking over the existing business of a Bar attached Hotel run under the name and style, 'Hotel Sea Gate'. It is further evident from Ext.P3 that there was a subsequent reconstitution, whereby five partners of the old firm, respondents 4 to 8 herein, retired with effect from 15.2.2005. It is contended that in the Bar license under the Abkari Act, which was issued in the name of two of the partners of the petitioner firm, permission was granted for reconstitution through an endorsement made thereon, as evidenced from Ext.P4. It is also evident that a W.P(C) No.1798 of 2011-Y 2 sales tax registration was obtained in the name of the petitioner firm, with effect from 2005-06 onwards. 2. The issue involved in this writ petition pertains to revenue recovery steps initiated for realization of arrears of sales tax. From Ext.P6 series notice it is evident that the defaulter is K.C.Thomas & Company, Hotel Sea Gate, Pathadippalam, Kalamassery. The arrears sought to be recovered pertains to the years 2003-04 and 2004-05. Contention of the petitioner is that the petitioner firm had commenced business only with effect from April 2005, and by virtue of the terms of reconstitution of the old firm, the liability of the present partners of the petitioner firm is only to a limited extent. Therefore the petitioner is not liable to be proceeded against, is the contention. 3. When the writ petition came up for admission, learned counsel who was then appearing on behalf of the petitioner conceded that, the impugned recovery proceedings initiated by virtue of Ext.P6 series notices is for realization of amounts assessed against the petitioner and W.P(C) No.1798 of 2011-Y 3 that the said assessment had attained finality. Learned counsel further expressed intention of the petitioner to settle the dues through the Amnesty Scheme available under the Kerala General Sales Tax Act (KGST Act). On that premise, an interim order was issued on 19.1.2011, making it clear that the petitioner will be at liberty to seek benefit of the 'Amnesty Scheme' and a direction was issued to the concerned authority to consider approach if any made, without any further delay. Further, in order to facilitate such a course, the recovery proceedings initiated pursuant to Ext.P6 series notices was ordered to be kept in abeyance, subject to condition of the petitioner remitting 50% of the amount in demand within one month from the date of the order (19.1.2011). It is also clarified that if any such remittance is made, the same shall be appropriated against the amount due under the 'Amnesty Scheme'. 4. At present, the petitioner had filed an interim application through the new counsel, seeking modification of the interim order. Contention raised is that, the W.P(C) No.1798 of 2011-Y 4 petitioner is limiting their relief only against the actions proposed for attachment of the movables situated in the premises wherein the business of the firm is being conducted. Such a plea is raised on the basis of a contention that the movables does not belong to the partners of the old firm who is in arrears of sales tax, but those items were purchased by the petitioner firm. 5. It is evident that the old firm was conducting the very same business which was being conducted under the name and style of 'Hotel Sea Gate'. The petitioner firm is still continuing business under the very same name and style. Contention is to the effect that there was a reconstitution of the earlier firm and there was also constitution of new firm (petitioner firm). But from Exts.P1 to P3 it is evident that partners of both the firm are more or less the same persons. As evident from the situation as narrated above, I am prima facie is of the opinion that, through the writ petition the petitioner is making only an attempt to get rid of the coercive steps now threatened by W.P(C) No.1798 of 2011-Y 5 raising some technical arguments. 6. It is pertinent to note that in the present application seeking modification of the interim order, the petitioner is not denying the concessions and submissions made. Nor any review is sought for with respect to those concessions and submissions recorded by this Court. Therefore, the order passed by this Court on 19.1.2011 could not be modified. 7. Considering the merits of the contentions raised in the writ petition, I am not inclined to quash the recovery steps or any action initiated against the movables or immovables situated in the premise where the Bar Hotel is now functioning. Since there is a clear failure on the part of the petitioner to comply with the terms of the interim order issued on the basis of concessions made by the petitioner, I am not inclined to exercise the discretionary jurisdiction vested under Article 226 of the Constitution. 8. If the petitioner has got any contention that the movables situated in the premise or the immovable property W.P(C) No.1798 of 2011-Y 6 wherein the hotel business is situated are not liable to be proceeded against for realization of amounts sought to be recovered under the impugned proceedings, they are left with appropriate remedy provided under the provisions of the Kerala Revenue Recovery Act. It is left open to them to resort to such remedy and if any such approach is made before the appropriate authority, the said authority shall adjudicate upon the same, untrammeled by any of the observations made herein above. The writ petition is accordingly dismissed, subject to reservation of rights if any available to the petitioner to invoke statutory remedy. C.K.ABDUL REHIM JUDGE ab