IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.R.RAMACHANDRA MENON FRIDAY, THE 29TH MAY 2009 / 8TH JYAISHTA 1931 WP(C).No. 37823 of 2003(C) --------------------------------------- PETITIONER(S): ------------------------ SWAROOPA K.P., FLAT NO. 402 E, CHINCHOLI BANDHAR LINK ROAD, MALAD WEST, MUMBAI, REPRESENTED BY HER POWER OF ATTORNEY M.A. JAYAKUMAR, JAYAKUMARI ESTATE, P.O.MADAKKIMALA, KALPETTA. BY ADV. MR.P.RAMAKRISHNAN RESPONDENT(S): ---------------------------- 1. STATE OF KERALA, REPRESENTED BY THE SECRETARY, DEPARTMENT OF REVENUE, THIRUVANANTHAPURAM. 2. THE AGRICULTURAL INCOME TAX AND SALES TAX OFFICER, VYTHIRI, KALPETTA. 3. THE DEPUTY TAHSILDAR, REVENUE RECOVERY, VYTHIRI. ADDL. R4 IS IMPLEADED. 4. THE COMMISSIONER OF COMMERCIAL TAXES, THIRUVANANTHAPURAM. IMPLEADED AS SUO MOTO AS PER JUDGMENT IN WPC. 37823/03 DT.29.5.09. GOVERNMENT PLEADER MR.V.K.SHAMSUDHEEN FOR R1 TO 3 THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 29/05/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: P.R. RAMACHANDRA MENON J. ~~~~~~~~~~~~~~~~~~~~~~~ W.P. (C) No. 37823 of 2003 ~~~~~~~~~~~~~~~~~~~~~~~ Dated, this the 29th day of May, 2009 JUDGMENT The main grievance projected in the above Writ Petition is against the sustainability of the action pursued by the departmental authorities in seeking to release the amount stated as in arrears resorting to the relevant provisions under the Revenue Recovery Act, despite the fact that 'it is a time barred debt', according to the petitioner. It is also pointed out by the learned counsel for the petitioner that appeals were actually pending consideration before the appellate authority/Deputy Commissioner Appeals, Agricultural Income Tax and Sales Tax, Kozhikkode for about 10 years and that for effecting 'fresh assessment' in tune with the direction given by the appellate authority, it took another three years. The grievance of the petitioner is that, because of the inordinate delay on the part of the departmental authorities in finalising the proceedings, huge liability by way of interest has been resulted and conveniently shifted to the shoulders of the petitioner, which is not correct or sustainable. 2. The learned Government Pleader, referring to the statement filed before this Court, seeks to rebut the contentions of the petitioner and seeks to sustain the impugned action. The plea of limitation raised by the petitioner is also stated as not correct or sustainable. WP (C) No. 37823 of 2003 : 2 : 3. It is true that the Apex Court, as per decision reported in State of Kerala Vs. V. R. Kallyanikutty (1999 (2) KLT 146) has held that time barred debt cannot be sought to be recovered by resorting to the provisions under Revenue Recovery Act. But then, the question is, what is the correct period of limitation with respect to the case in hand. The contentions raised from the part of the petitioner would have invited some attention, had it been a case of transaction between individuals so as have the period of limitation as 'three' years. In the instant case, the dues being payable to the Government, for deciding the question of Limitation, the relevant provision stipulates under Article 112 of the Limitation Act, that the prescribed time is 30 years. This being the position, the reliance placed by the petitioner, on the dictum in State of Kerala Vs. V. R. Kallyanikutty (1999 (2) KLT 146) is quite wrong and misconceived. 4. However, the contention taken by the petitioner that there is absolutely no justification for penalizing the petitioner, for the delay incurred on the part of the departmental authorities in finalizing the proceedings, appears to be of some force; though it cannot be said that the department is solely responsible for the same. The learned Government Pleader submits that, before fixing the same, it is very much necessary to advert to the actual facts and figures and hence has to be considered by the concerned appellate authority, who is not a WP (C) No. 37823 of 2003 : 3 : party to the present proceedings. 5. In the above facts and circumstances, the petitioner is permitted to approach the concerned appellate authority by filing a proper representation showing the actual facts and figures, so as to enable the said authority to consider the same and to pass necessary orders in this regard before fixing the exact liability by way of interest. The petitioner shall file such representation within a period of one month. On such an event, the said representation shall be caused to be considered by the Commissioner, under section 37 (4) of the Kerala Agricultural Income Tax Act and pass appropriate orders in accordance with law, as expeditiously as possible, at any rate, within a period of two months from the date of receipt of copy of this judgment. It is made clear that further proceedings to be pursued against the petitioner in respect of the extent of 'interest' will be subject to such orders to be passed by the Commissioner as stated as above. 6. Considering the position as above, the concerned Commissioner will stand impleaded suo motu, as the additional 4th respondent to the above proceeding, on whose behalf, the learned Government Pleader has entered appearance. The matter is disposed as above. P. R. RAMACHANDRA MENON, JUDGE kmd