IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE C.N.RAMACHANDRAN NAIR & THE HONOURABLE MR. JUSTICE C.K.ABDUL REHIM WEDNESDAY, THE 5TH AUGUST 2009 / 14TH SRAVANA 1931 WA.No. 56 of 2009() ------------------- AGAINST THE JUDGEMENT/ORDER IN WPC.30029/2005 Dated 16/07/2008 .................... APPELLANT(S): -------------- 1. THE SALES TAX OFFICER, 2ND CIRCLE, ALAPPAT ROAD, ERNAKULAM, KOCHI 682 016 . 2. DEPUTY TAHSILDAR (RR) CHERTHALA. BY G.P. SRI.MOHAMMED RAFIQ RESPONDENT(S): --------------- 1. K.P.SURESH, S/O.LATE K.K.PRABHAKARAN MAY FAIR, PATTANAKKAD PO, CHERTHALA, ALAPPUZHA DISTRICT. 2. SHEELA SURESH, W/O.K.P.SURESH MAY FAIR, PATTANAKKAD PO, CHERTHALA, ALAPPUZHA DISTRICT. ADV. SRI.KMV.PANDALAI FOR R1,2 THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 05/08/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: C.N.RAMACHANDRAN NAIR & C.K.ABDUL REHIM, JJ. .................................................................... Writ Appeal No.56 of 2009 .................................................................... Dated this the 5th day of August, 2009. JUDGMENT Ramachandran Nair, J. Even though Government Pleader pointed out that even for period before coming into force of Section 26C, directors of private limited company could be proceeded against based on judgments of Supreme Court in MCDOWELL's case and SREE MEENAKSHI MILLS' case referred to in the judgment of the learned Single Judge, we notice that the learned Single Judge examined this matter also and came to the finding that the officer has not established any case of appropriation of funds by directors or that formation of company was for tax evasion. In the circumstances, we dismiss the Writ Appeal. However, we make it clear that since the question decided in the W.P. (C) is only on the application of Section 26C, nothing more will bind the department. In other words, if recovery is permissible otherwise, it 2 is open to the department to consider the same but after issuing notice and after giving opportunity to the respondent. C.N.RAMACHANDRAN NAIR Judge C.K.ABDUL REHIM Judge pms