IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE C.K.ABDUL REHIM TUESDAY, THE 2ND JUNE 2009 / 12TH JYAISHTA 1931 WP(C).No. 24888 of 2004(K) -------------------------- PETITIONER(S): --------------- MATHEW RAJAN, S/O.KUNCHU KUNJU, FORMER PARTNER IN M/S.MAYOORA MARBLES GRANITES, SULTHAN BATHERY, RESIDING AT PALAVILAPUTHENVEETTIL HOUSE, POOMALA, SULTHAN BATHERY, WAYANAD DISTRICT. BY ADV. SRI.P.J.JOSEPH PANIKKASSERY SRI.P.SHAJI RESPONDENT(S): --------------- 1. STATE OF KERALA, REP: BY DISTRICT COLLECTOR, WAYANAD. 2. THE COMMERCIAL TAX OFFICER, A.I.T. & S.T., SULTHAN BATHERY. 3. THAHASILDAR (R.R.), AMBALAVAYAL, SULTHAN BATHERI TALUK. BY GOVERNMENT PLEADER SRI. K.P PRADEEP FOR R1 TO 3 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 02/06/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.C NO.24888 OF 2004 APPENDIX PETITIONER'S EXHIBITS: Ext.P1: True copy of petition dated 3.8.04. Ext.P2: Photo copy of objection dated 3.8.04. Ext.P3: Photocopy of partnership deed dated 12.6.98. Ext.P4: Photocopy of acknowledgement dated 28.8.98. Ext.P5: Photocopy of form No.5 dated 12.6.98. Ext.P6: Photocopy of demand notice dated 17.7.2004. RESPONDENT'S EXHIBITS: NIL /True Copy/ P.A. TO JUDGE C.K ABDUL REHIM, J. --------------------------------------------- W.P.(C) NO.24888 OF 2004 --------------------------------------------- Dated this the 2nd day of June, 2009 JUDGMENT 1. The petitioner is challenging the revenue recovery proceedings initiated against him as evidenced by Ext.P6 demand notice, for realisation of amount of sales tax due from a partnership firm in which he was a partner. The case of the petitioner is that he had retired from the partnership with effect from 31.3.1998 as evidenced by Ext.P3, re-constitution deed of the partnership. The petitioner claims that, when notice regarding assessment for the year 2001-02 was received, he submitted Ext.P1 petition, purported to be a rectification petition filed under Section 43 of the K.G.S.T Act. Further it is stated that he had submitted Ext.P2 objections before the revenue recovery authorities disputing the liability for payment of arrears of the firm, and requesting to stop the proceedings initiated personally against him. The petitioner claims that the re-constitution of the partnership and his retirement was duly intimated at that time by W.P.(C) NO.24888 OF 2004 2 submitting Form No.3 under the K.G.S.T Rules. Eventhough Ext.P5 was produced as copy of the intimation send, the learned Government Pleader on instructions submitted that no such intimation was furnished by the petitioner or by any other partner, and the re-constitution of the partnership was never intimated to the assessing authority. From a report filed by the 3rd respondent Thahsildar, it is revealed that the firm had already ceased functioning since 2001, and no property exist in the name of the partnership firm. However it is stated that pursuant to the interim direction issued from this court on 20.8.2004, steps has already been initiated against one of the new partners, namely sri. Janardhanan for recovering the amounts demanded under Ext.P6. 2. The amounts sought to be recovered per Ext.P6 is arrears of sales tax due from a partnership firm in which the petitioner was admittedly a partner. As per the provisions in the K.G.S.T Act and the Rules framed thereunder a partner of a firm is liable for payment of tax amount due with respect to business W.P.(C) NO.24888 OF 2004 3 of the firm. There is no evidence to show that the re-constitution of the partnership was duly intimated to the assessing authority, nor there is any evidence to prove that the deed of re-constitution was produced before such authority at any point of time. As per the registration granted by the assessing authority, the petitioner is also a partner of the firm. Under such circumstances it cannot be held that the revenue recovery steps initiated against the petitioner for realisation of sales tax amount due from the firm is unsustainable. If the petitioner has got any grievance against the assessment or demand raised against him, he has to work out remedies available under the relevant statute. Petitioner has not even produced copy of the assessment order along with this writ petition. The petitioner has got effective alternative remedy by way of statutory appeal against such assessment. Under such circumstances there is no merit in this writ petition and this court could not adjudicate upon the question regarding liability of the petitioner in this writ petition. W.P.(C) NO.24888 OF 2004 4 3. However, the learned counsel for the petitioner seeks indulgence of this court for granting him a reasonable opportunity to move before the appellate authority against the assessment. The petitioner expresses his desire to file appeal against the assessment order along with application for condonation of delay and to further to seek stay of recovery, from the appellate authority. 4. Considering the fact that this writ petition was pending since year 2004 onwards and this court had granted an interim stay, I am inclined to dispose of this writ petition directing the 3rd respondent to keep in abeyance all further steps for recovery pursuant to Ext.P6 notice against the petitioner, for a period of two months for facilitating the petitioner to work out his remedies if any available under the statute. (C.K ABDUL REHIM, JUDGE) spc W.P.(C) NO.24888 OF 2004 5 spc