IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE C.N.RAMACHANDRAN NAIR FRIDAY, THE 14TH MARCH 2008 / 24TH PHALGUNA 1929 WP(C).No. 33915 of 2005(K) -------------------------- PETITIONER: ------------ KUNNAKAT THENCHERIKUTH MOHAMMED S/O. ALAVI, AGED 65 YEARS, THENCHERIKUTH HOUSE, P.O. ANDIYURKUNNU, VIA-PULIKKAL-673 637. BY ADV. DR.K.B.MUHAMED KUTTY (SR.) SRI.K.M.FIROZ RESPONDENTS: ------------- 1. THE COMMERCIAL TAX OFFICER, VYTHIRI AT KALPETTA. 2. THE DEPUTY TAHSILDAR, REVENUE RECOVERY, TALUK OFFICE, ERNAD MANJERI. BY GOVERNMENT PLEADER SRI. K.P. PRADEEP THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 14/03/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: 2 APPENDIX PETITIONER'S EXHIBITS: EXT.P1 TRUE COPY OF THE REVENUE RECOVERY DEMAND NOTICE IN FORM NO.1 & 10 FOR THE YEAR 1985-86 DATED 21.10.2005 EXT.P2 TRUE COPY OF THE REVENUE RECOVERY DEMAND NOTICE IN FORM NO. 1 & 10 FOR THE YEAR 1986-87 DATED 21.10.2005 EXT.P3 TRUE COPY OF THE REVENUE RECOVERY DEMAND NOTICE IN FORM NO. 1 & 10 FOR THE YEAR 1989-90 DATED 21.10.2005 EXT.P4 TRUE COPY OF THE REVENUE RECOVERY DEMAND NOTICE IN FORM NO. 1 & 10 FOR THE YEAR 1991-92 DATED 21.10.2005 EXT.P5 TRUE COPY OF THE REVENUE RECOVERY DEMAND NOTICE IN FORM NO. 1 & 10 FOR THE YEAR 1993-94 DATED 21.10.2005 EXT.P6 TRUE COPY OF THE LETTER DATED 15.11.2005 EXT.P7 TRUE COPY OF THE LETTER DATED 23.11.2005 EXT.P8 TRUE COPY OF THE LETTER DATED 25.11.2005 EXT.P9 TRUE COPY OF THE ASSESSMENT ORDER FOR 1989-90 DATED 30.1.2003 RESPONDENT'S EXHIBITS: ANNEXURE R1(a) TRUE COPY OF THE STATEMENT DATED 16.11.1989 ANNEXURE R1(b) TRUE COPY OF THE LETTER DATED 20.11.1999 TRUE COPY P.S. TO JUDGE. C.N. RAMACHANDRAN NAIR, J. -------------------------------------------- W.P.C. NO. 33915 OF 2005 -------------------------------------------- Dated this the 14th day of March, 2008 JUDGMENT Commissioner of Commercial Taxes, Thiruvananthapuram, is impleaded as addl. 3rd respondent. 2. Petitioner is challenging recovery proceedings for recovery of arrears of sales tax due for the years 1985-86 to 1993-94. The total amount as of now comes to around Rs. 25 lakhs. Even though petitioner is denying his involvement in the business stating that he is only a small farmer, petitioner has under interim orders of this Court remitted Rs. 3 lakhs. Government Pleader submitted that RC file is misplaced and therefore department is not able to trace the partners. I am unable to accept this explanation because it is seen from the document produced by the petitioner himself that assessment was challenged in appeal and even appellate orders are given effect to by the Assessing Officer by revising the assessment. Obviously somebody was representing in the assessment proceedings and filed appeal engaging counsel and if a serious enquiry is conducted there should be no difficulty to trace the actual persons who carried on the 2 business, whether it be the petitioner or Sri. K.T. Assainar or K. Saidalavi who are stated to be partners by the department. This Court suggested to the Government Pleader to request the authorities to proceed for recovery against other partners. Government Pleader submitted that Managing Partner is residing at Feroke in Kozhikode District and steps are taken for proceeding against him. The mounting of huge arrears of tax happened probably on account of failure of the assessing officer to take steps for recovery of tax in time. Moreover, disappearance of registration file is also mysterious when huge arrears of tax are pending to be recovered. Identification of persons who carried on the business and recovery against them are possible only if co-ordinated efforts are made by sales tax department and recovery authorities of various Districts where the defaulters are residing. I do not think this Court should take up the responsibility of the department in arranging for recovery of the tax and it is for the heads of the departments to take steps to ensure that tax is recovered. If departmental officers have complicity in the matter, Vigilance enquiry should be ordered against them. Having regard to the contentions raised by the petitioner that he has no involvement in the business and department has not produced in Court the partnership deed or any 3 acceptable document to identify the petitioner as a defaulter, I dispose of WPC directing the Commissioner of Commercial Taxes to engage any proper Departmental officer or refer the matter to the Vigilance Department for enquiry and based on Vigilance enquiry to proceed for recovery. Since petitioner has paid Rs. 3 lakhs, there will be stay of recovery proceedings against him for four months from now. Recovery thereafter will be based on result of enquiry got conducted by the addl. third respondent as directed above. The addl. third respondent is directed to get the enquiry completed and ensure recovery within the time stated above. However, it will be open to the department to proceed for recovery against other partners without any further enquiry as they are not contesting the liability. Petitioner is free to claim refund, if on enquiry petitioner is found to be not involved in the business and is not a defaulter. If recovery is continued against the petitioner, the findings regarding petitioner's involvement in the enquiry report should be communicated to the petitioner. Issue photocopy to Government Pleader also. (C.N. RAMACHANDRAN NAIR) Judge kk 4