IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HON'BLE THE CHIEF JUSTICE MR.H.L.DATTU & THE HONOURABLE MR. JUSTICE K.M.JOSEPH FRIDAY, THE 7TH MARCH 2008 / 17TH PHALGUNA 1929 WA.No. 134 of 2008 -------------------- AGAINST THE JUDGEMENT IN WPC.3042/2006 Dated 17/07/2007 .................... APPELLANT/PETITIONERS: --------------------------------------- 1. BIRIYAKUTTY, W/O. MOIDEEN, PADINJARAYIL VEEDU, P.O. KAREPURAM, NILAMBUR, MALAPPURAM DISTRICT. 2. PATHUMMA, W/O. MOIDEEN, PADINJARAYIL VEEDU, P.O. KAREPURAM, NILAMBUR, MALAPPURAM DISTRICT. BY ADVS. SRI.M.V.BOSE SRI.VINOD MADHAVAN SMT.NISHA BOSE RESPONDENTS/RESPONDENTS & ADDL.5TH RESPONDENT: -------------------------------------------------------------------------------------- 1. THE DISTRICT COLLECTOR, MALAPPURAM. 2. THE TAHSILDAR, NILAMBUR. 3. THE INTELLIGENCE OFFICER, SQUAD NO.II, COMMERCIAL TAXES, MINI CIVIL STATION, TIRUR. 4. ABDU RAHIMAN, S/O. MOHAMMED, AILEKKARA, EDAKKARA, MALAPPURAM DISTRICT. 5. ISMAIL, S/O. MAYIN, PARASSANAMKUNNU, NILAMBUR, MALAPPURAM DIST. BY SR. GOVT. PLEADER SRI. MUHAMMED RAFIQ. THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 07/03/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: H.L. DATTU, C.J. & K.M. JOSEPH, J. - - - - - - - - - - - - - - - - - - - - - - - - - - - - - WRIT APPEAL No.134 of 2008 - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 7th day of March, 2008. JUDGMENT H.L.DATTU, CJ, Being aggrieved by the orders passed by the learned Single Judge in W.P.(C) No.30421 of 2006 dated 17th July, 2007, the petitioners in the writ petition have presented this writ appeal. 2. The factual matrix lie in a very narrow compass. 3. Petitioners are the wives of one Sri.Moideen. In the writ petition filed, they have called in question the revenue recovery proceedings initiated by the respondent authorities to recover the penalty imposed under Section 45A of the Kerala General Sales Tax Act (“the Act” for short) against their husband. It was their contention before the learned Single Judge that the property in question had been conveyed to them as per Exts.P10 and P10(a) settlement deeds by their husband on 22.11.2000 and the revenue recovery proceedings against the husband was initiated only after 29.1.2004. 4. Prior to fastening the liability under the Sales Tax Act against the petitioner's husband, the respondent had proceeded against the landlord of the property where the sawmill is situated. The landlord had questioned the orders passed by the respondent authorities in exercise of their powers under Section 45A of the Act before the Deputy Commissioner of Commercial Taxes, who is the revisional authority. The revisional authority has found that the sawmill had been leased out to the petitioners' husband on 1.4.1999 and a shop inspection has been conducted by the Intelligence Officer attached to the Department on 8.7.1999. W.A. 134/2008. 2 Therefore the Deputy Commissioner, by his order, had set aside the penalty proceedings initiated by the respondents against the landlord and had remanded the matter for a fresh consideration by the respondent authorities Since the husband of the petitioners did not co-operate after the matter was remanded, the respondent authority has now passed Ext.P2 order against the husband of the petitioners. 5. After the initiation of the proceedings for recovery of the amounts imposed by way of penalty, the petitioners were before this court in W.P. (C) No.30421 of 2006. As we have already noticed, it was the primary contention of the petitioners before this court that even before any proceedings could be initiated by the respondent authorities, the husband of the petitioners had executed a settlement deed in favour of the petitioners. A further contention was canvassed that at no point of time the petitioners' husband was conducting business in the sawmill owned by the landlord. 6. The learned Single Judge, after going through the records and also after going through the shop inspection report made on 8.7.1999, has come to the positive conclusion that the petitioners' husband was the lessee of the sawmill and further has come to the conclusion that said proceedings under the provisions of the Sales Tax Act, had been initiated somewhere in the year 1999. 7. The petitioners dispute the aforesaid factual findings by the learned Single Judge. Even before this court it is contended that at no point of time the petitioners' husband was running the sawmill and secondly even before any proceedings could be initiated under the provisions of the Act, the petitioners' husband had executed the settlement deed in favour of the petitioners. 8. In our opinion, none of the contentions canvassed by the W.A. 134/2008. 3 appellant and their learned counsel has any merit whatsoever. 9. The records produced by the revenue even before us will clearly indicate that a shop inspection was conducted by the authorities of the Sales Tax Department on 8.7.1999 and in that shop inspection report the petitioners' husband has signed and also has accepted that there was a lease in his favour by the landlord of the immovable property. Admittedly the settlement deeds were executed by the petitioners' husband on 22.11.2000, and it would only mean that it was after the proceedings were initiated by the authorities under the provisions of the Sales Tax Act. 10. Section 26A of the Act totally prohibits such a transfer during the pendency of the proceedings before the Sales Tax authorities. Even if such a transfer is made, the legislature in its best wisdom has said that such a transfer is void. 11. In view of the factual position that we have narrated in the course of our judgment, two things are clear. Firstly, the husband of the petitioners was conducting business and appropriate proceedings had been initiated against the petitioners' husband for realisation of the penalty amount due under the Act. Secondly, when these proceedings were pending, the petitioners' husband has transferred the property in favour of the petitioners. In view of the provisions of Section 26A of the Act, such a transfer is void and therefore the appellants before us cannot contend that the authorities under the Act were not justified in initiating proceedings to sell the properties, which were transferred by their husband in their favour, for realisation of penalty imposed under the Act. 12. The learned Single Judge has noticed all these aspects of the matter and thereafter has come to the conclusion that the petitioners have not W.A. 134/2008. 4 made out a case for interference. Having gone through the annexures produced by the respondents and also having gone through the orders passed by the learned Single Judge, we are of the opinion that the learned Single Judge has not committed any error which would call for our interference. Therefore, the writ appeal requires to be rejected and it is rejected. Ordered accordingly. H.L. DATTU, CHIEF JUSTICE K.M. JOSEPH, JUDGE sb/DK.