IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.R.RAMACHANDRA MENON MONDAY, THE 29TH NOVEMBER 2010 / 8TH AGRAHAYANA 1932 WP(C).No. 24245 of 2005(J) -------------------------------------- PETITIONER: ------------------- M/S.CHEMBRA ESTATE, MEPPADY, WAYANAD, REPRESENTED BY MANAGER, K.SUBRAMANIAN. BY ADV. SRI.P.V.JYOTHI PRASAD. RESPONDENTS: ------------------------ 1. THE SALES TAX OFFICER, SPECIAL CIRCLE (PRODUCE), MATTANCHERRY, COCHIN-682 002. 2. THE SALES TAX OFFICER, VYTHIRI AT KALPETTA. 3. M/S.FORBES EWART & FIGGIS PVT.LTD., POST BOX NO. 545, COCHIN-682 003. 4. THE TAHSILDAR, VYTHIRI. *ADDL. R5. IMPLEADED: 5. M/S. PREMIER PLANTATIONS LTD., IST FLOOR, HOTEL CRYSTAL COMPLEX, BANERJI ROAD, COCHIN – 18. *IS IMPLEADED AS ADDL. R5. AS PER ORDER DTD. 19/03/07 IN I.A. 1752/07. R1, R2 & R4 BY GOVERNMENT PLEADER SRI. K.P. PRADEEP, R3 & ADDL.R5 BY SRI.A.M.SHAFFIQUE, SENIOR ADVOCATE, ADVS. SRI.E.K.NANDAKUMAR, SRI.A.K.JAYASANKAR NAMBIAR, SRI.ANIL D. NAIR. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 29/11/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C). NO.24245/2005-J: APPENDIX PETITIONERS' EXHIBITS: EXT.P.1: COPY OF THE ASSESSMENT ORDER FOR THE YEAR 1992-93. EXT.P1.A: COPY OF THE ASSESSMENT ORDER OF 1993-94. EXT.P.2: COPY OF THE LETTER ISSUED BY THE COURT RECEIVER. EXT.P.3: COPY OF THE CERTIFICATE ISSUED BY COCHIN AUCTION AGENT TO PREMIER PLANTATION PVT.LTD. EXT.P.4: COPY OF THE CERTIFICATE ISSUED BY COCHIN AUCTION AGENT TO PREMIER PLANTATION PVT. LTD. EXT.P.5: COPY OF THE CERTIFICATE ISSUED BY COCHIN AUCTION AGENT TO PREMIER PLANTATION PVT. LTD. EXT.P.6: COPY OF THE CERTIFICATE ISSUED BY COCHIN AUCTION AGENT TO PREMIER PLANTATION PVT. LTD. EXT.P.7: COPY OF THE CERTIFICATE ISSUED BY COCHIN AUCTION AGENT TO PREMIER PLANTATION PVT. LTD. EXT.P.8: COPY OF THE CERTIFICATE ISSUED BY COCHIN AUCTION AGENT TO PREMIER PLANTATION PVT. LTD. EXT.P.9: COPY OF THE LETTER ISSUED BY THE PETITIONER DTD. 20/07/2005. EXT.P.10: COPY OF THE REVENUE RECOVERY NOTICE. RESPONDENTS' EXHIBITS: EXT.R5.A: COPY OF THE ASSESSMENT ORDER FOR THE YEAR 1990-91 ISSUED BY THE SALES TAX OFFICER, SPECIAL CIRCLE (PRO) MATTANCHERRY DTD. 03/03/99 TO THE R.5. EXT.R5.B: COPY OF THE ASSESSMENT ORDER FOR THE YEAR 1991-92 ISSUED BY THE SALES TAX OFFICER, SPECIAL CIRCLE (PRO) MATTANCHERRY DTD. 03/03/99 TO THE R.5. EXT.R5.C: COPY OF THE ASSESSMENT ORDER FOR THE YEAR 1992-93 ISSUED BY THE SALES TAX OFFICER, SPECIAL CIRCLE (PRO) MATTANCHERRY DTD. 03/03/99 TO THE R.5. //TRUE COPY// P.S. TO JUDGE. Prv. P.R. RAMACHANDRA MENON, J. .............................................................................. W.P.(C) No. 24245 OF 2005 ......................................................................... Dated this the 29th November, 2010 J U D G M E N T The issue involved in this writ Petition is whether the petitioner is entitled to have the matter re-opened with regard to the assessment of tax and fixation of liability, when the proceedings already pursued by the petitioner at different levels including by approaching the Tribunal and allegedly before this Court also invoking the power of revision under section 41 of the KGST Act, have become final. 2. With regard to the sequence of events, it is to be noted that the petitioner is stated as the owner of the concerned estate known as 'Chembra Estate' which was purchased in the year 2000 as per the orders of the DRT, Mumbai. Prior to the purchase as above, the tea estate was, in fact, being run by a Receiver appointed by the High Court of Mumbai, as per the order dated 03.04.1987 and he took possession of the property on 02.05.1987. As borne by Ext. P2, the Receiver appointed an agent by name T.P. Muraleedharan to run the estate, to pay the tax and also to effect payment of royalty. It is stated that W.P.(C) No. 24245 OF 2005 2 the aforesaid agent appointed by the Receiver, was having a separate plantation in the name and style as 'Premier Planations' had taken out another Registration under the sales tax laws and that the tea procured from the petitioner estate was being sold through the third respondent /auctioneer . 3. It is the case of the petitioner that the tax payable in respect of the relevant assessment years 1992-93 and 1993-94 was satisfied by the third respondent and no further liability could have been there in respect of the estate purchased by the petitioner. However, without any regard to the above proceedings, particularly as to the collection of tax through the third respondent and satisfied to the first respondent, Exts. P1/P1 (a) assessment orders were passed by the second respondent, aggrieved of which, statutory appeals were preferred before the concerned appellate authority. After considering the case projected by the petitioner that the commodity had already suffered the tax and payment was effected by the third respondent before the first respondent , the matter was remanded for fresh consideration . Pursuant to the orders W.P.(C) No. 24245 OF 2005 3 passed by the appellate authority, the concerned sales tax officer issued a notice to produce the relevant documents whereupon, the petitioner sent a reply stating that no such documents were available with the petitioner, as the estate was being run by the Receiver appointed by the High court of Mumbai and that the records were available only with Muraleedharan, the agent appointed by the Receiver, who caused the tax to be paid at Mattancherry. 4. After considering the reply, re-assessment orders were passed, which went against the petitioner, under which circumstance, the petitioner filed an appeal simultaneously seeking to call for the documents and to have the matter finalised after perusing the documents to be obtained from the authorities at Mattancherry. Because of the coercive proceedings taken against the petitioner in the meanwhile, as borne by Ext. P10, the petitioner approached this Court by filing W.P.(C) 5087 of 2004, wherein an interim order was passed to deposit a sum of ` One lakh each in respect of two different assessment years, on satisfaction of which, the appellate authority was W.P.(C) No. 24245 OF 2005 4 directed to consider the statutory appeal and to have it finalised in the manner as specified therein, after calling for the records from the Mattancherry office. Pursuant to the above verdict , the appellate authority considered the matter and finalised the appeal, declining interference which in turn has been subjected to challenge by filing the present Writ Petition. 5. Referring to the statement filed from the part of the departmental authorities, the learned Counsel for the petitioner submits that it has been clearly conceded by them in paragraph 2 of the statement that no records are available so as to confirm that the tea procured from the estate of the petitioner was the tea that was sold by the third respondent in the auction, suffering payment of tax . Referring to the counter affidavit filed by the third respondent/auctioneer, the learned Counsel asserts that the third respondent has categorically stated that the tea from the estate of the petitioner was sold through the third respondent, as entrusted by the fifth respondent. To ascertain the further particulars so as to connect the tea procured from the petitioner's estate, it is stated as necessary to have the W.P.(C) No. 24245 OF 2005 5 assessment records of the 5th respondent verified. It was in the said circumstance that the petitioner sought to implead 'Premier Plantation Ltd' as the additional 5th respondent . On allowing the I.A., the 5th respondent has filed a counter affidavit also producing copies of the relevant documents , particularly, the assessment orders in respect of the relevant assessment years except 1993-94 showing that the tax had already been collected and paid . The learned counsel also makes a reference to Exts. P3 to P8 which are the certificates issued by the third respondent regarding payment of tax, wherein a specific reference has been made as to the source of procurement, by making a mention of the name of the estate as 'Chembra estate' i.e, the petitioner. In the said circumstance, the learned counsel submits, that the petitioner is justified in seeking for the matter to be re-opened so as to absolve the petitioner from any liability. 6. The learned Government Pleader appearing for the respondents 1 and 2 submits that the Writ Petition itself is not maintainable on facts as well as in law . It is brought to the W.P.(C) No. 24245 OF 2005 6 notice of this Court that, in respect of the assessment year 1992-93, the assessment was completed on 21.02.1998 . aggrieved of which, the petitioner had preferred an appeal, which was remanded as mentioned hereinbefore. Thereafter, fresh notice was issued under section 17(3) on 12.03.2003, despite which no documents were produced . The assessment was accordingly completed on 31.03.2003 and ultimately, it came to be dealt with, in STA 363 of 2003 filed at the instance of the petitioner. In respect of the assessment year 1993-94, similar proceedings were finalised and the petitioner had filed STA 366 of 2003. Similarly, with regard to the liability under the CST Act, in respect of the assessment year 1992-93, the petitioner had preferred STA 365 of 2003. All these appeals were considered together by the first appellate authority and they were dismissed by a common order dated 21.01.2004. Being aggrieved of the verdict passed by the first appellate authority, the petitioner took up the matter by approaching the Tribunal, Kozhikode, where the appeals were numbered as T.A.Nos.167,168 and 169 of 2004. After considering the rival contentions, the Tribunal W.P.(C) No. 24245 OF 2005 7 dismissed all those appeals as per the verdict dated 23.11.2004. It is stated that the petitioner also made a further attempt by filing revision petition before this Court invoking the power under Section 41 of the KGST Act, which however did not turn to be fruitful. In view of th sequence of events as above, the learned Government Pleader submits that the matter has become final and that the petitioner is not justified in seeking to re-open the proceedings by filing the present Writ Petition. 7. This Court finds that the entire case has been moulded by the petitioner with reference to the documents viz., Exts. P3 to P8 issued by the third respondent referring to the name of the estate as 'Chembra estate' and with reference to the assessment records passed by the first respondent in respect of the transactions made by the 5th respondent. Exts. P3 to P8 are dated as follows: Ext.P3 - 01.10.1992 Ext.P4 - 03.09.1992 Ext.P5 - 04.08.1992 Ext.P6 - 02.07.1992 W.P.(C) No. 24245 OF 2005 8 Ext.P7 - 04.06.1992 Ext.P8 - 05.05.1992. Several rounds of litigations are already over. The petitioner has not chosen to produce the orders passed by the Tribunal, nor has made any reference to the further proceedings by way of revision under section 41 of the KGST Act. This Court finds no reason to doubt the submission made by the learned Government Pleader as to the finality of the proceedings as mentioned hereinbefore. In the said circumstance, it is difficult to accept the version of the petitioner so as to have the assessment re- opened through this Writ Petition. No tenable ground is established to call for interference. The writ Petition fails and it is dismissed accordingly. P.R. RAMACHANDRA MENON, JUDGE. lk