IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.SIRI JAGAN WEDNESDAY, THE 6TH APRIL 2011 / 16TH CHAITHRA 1933 WP(C).No. 31742 of 2007(D) --------------------------------------- PETITIONER: ------------------- K.V.JAMES, S/O. K.K.VARGHESE, AGED 58 YEARS, KALAPARAMBATHU HOUSE, ASOKAPURAM P.O., ALUVA. BY ADVS. SRI.C.A.CHACKO, SMT.C.M.CHARISMA, SRI.N.A.SHAFEEK. RESPONDENTS: ------------------------ 1. STATE OF KERALA REP. BY SECRETARY TO GOVERNMENT, DEPARTMENT OF REVENUE, SECRETARIAT, THIRUVANANTHAPURAM. 2. DISTRICT COLLECTOR, ERNAKULAM 3. COMMERCIAL TAX OFFICER,ANGAMALI. 4. SPECIAL TAHSILDAR (RR), ALUVA. 5. VILLAGE OFFICER, ALUVA EAST VILLAGE 6. M.P.BABU S/O. PAILAPPAN, MOONJELI HOUSE, NEAR ST.GEORGE FORANE CHURCH , ANGAMALI, PIN-683 572. R1 TO R5 BY GOVERNMENT PLEADER SMT. SMITHA SUKUMAR. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 06/04/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C). NO.31742/2007-D: APPENDIX PETITIONERS' EXHIBITS: EXT.P.1: COPY OF THE RETIREMENT DEED DTD. 31/12/98. EXT.P.2: COPY OF THE RR NOTICE DTD. 20/01/07 ISSUED BY R.4. EXT.P.3: COPY OF THE REPRESENTATION DTD. 11/07/07 SUBMITTED BEFORE THE R.2. WITH COPY TO R.1. EXT.P.4: COPY OF THE DISSOLUTION DEED DTD. 16/04/99 ALONG WITH COVERING LETTER FROM DIC. RESPONDENTS' EXHIBITS: NIL. //TRUE COPY// P.A. TO JUDGE. Prv. S. SIRI JAGAN, J. - - - - - - - - - - - - - - - - - - - - - - - W.P.(C)No. 31742 of 2007 - - - - - - - - - - - - - - - - - - - - - - - Dated this the 6th day of April, 2011 J U D G M E N T The petitioner is challenging revenue recovery proceedings against him for realization of sales tax arrears of a partnership firm by name 'M/s. JnB Paints', Angamaly for the assessment year 2001-02. The petitioner challenges the proceedings on the ground that although the petitioner was a partner of the firm, he retired from the partnership on 31.12.1998 as per Ext.P1 Retirement Deed dated 31.2.1998 which reconstitution of partnership firm was intimated to the Sales Tax Authorities and therefore the petitioner is not liable for sales tax arrears due for the assessment year 2001-02. The petitioner therefore seeks the following reliefs: “i) issue a Writ of Certiorari or any other appropriate writ, order or direction to quash Ext.P2 notice after calling for records leading to its issuance; ii) declare that the recovery proceedings initiated against the petitioner to realize the amount due from M/s. JnB Paints, Angamaly after his retirement from the firm is illegal and arbitrary; iii) issue a Writ of Mandamus or any other appropriate writ, W.P.(C)No. 31742 of 2007 -2- order or direction directing the respondents 3 to 5 not to proceed against the petitioner's property in pursuance to Ext.P2 notice.” 2. A counter affidavit has been filed on behalf of the 3rd respondent wherein the contention taken is that the firm was reconstituted in 1995 as per which the petitioner and one Sri. Baby M.P. remained as partners of the firm to continue the business of the firm. According to them, then onwards the petitioner and the said Baby M.P. are the partners and the Sales Tax Authorities have not been informed of any reconstitution of the firm or the Retirement Deed dated 31.12.1998. Therefore according to the 3rd respondent, the petitioner cannot escape from the liability to pay tax as a partner of the firm. 3. I have heard both sides. 4. Insofar as the petitioner has no evidence to show that Ext.P1 Retirement Deed has been filed with the Sales Tax Authorities, the veracity of Ext.P1 Deed of Retirement is very much in doubt. As far as the sales tax authorities are concerned, as per their records the petitioner is a partner of W.P.(C)No. 31742 of 2007 -3- the firm even as on the date of the assessment year in question. As such, I do not think that the petitioner can disclaim liability for payment of the arrears of sales tax on the basis of Ext.P1 retirement deed which was never made known to the sales tax authorities. Therefore, I do not find any ground to countenance the contention of the petitioner regarding the liability to pay sales tax as demanded by the sales tax authorities in respect of the firm in which the petitioner was a partner. If Ext.P1 has been validly executed as between the said M.P. Baby and the petitioner it is for the petitioner to proceed against the said Baby M.P. for recovery of amounts recovered by the sales tax authorities from the petitioner in respect of the firm. Accordingly the writ petition is dismissed. Sd/- S. SIRI JAGAN JUDGE //True copy// P.A. TO JUDGE shg/