IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.M.JOSEPH FRIDAY, THE 8TH AUGUST 2008 / 17TH SRAVANA 1930 WP(C).No. 21205 of 2008(Y) ---------------------------------- PETITIONER: ----------------- ABDUL AZEEZ, S/O T. KUNJU, HOUSE NO. 21/451,HILAL, VELLAPPALLY LINE, KOTTAYAM. BY ADV. SRI.V.P.MOHAMMED NIYAZ RESPONDENTS: ----------------------- 1. STATE OF KERALA, REPRESENTED BY SECRETARY, REVENUE DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM, 2. TAHSILDAR, REVENUE RECOVERY, KOTTAYAM. 3. SALES TAX OFFICER, DEPARTMENT OF COMMERCIAL TAXES, II CIRCLE, KOTTAYAM. BY GOVERNMENT PLEADER SMT. C.K. GOVINDAN. THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 08/08/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K. M. JOSEPH, J. -------------------------------------- W.P.C. NO. 21205 OF 2008 Y -------------------------------------- Dated this the 8th August, 2008 JUDGMENT Briefly put, the case of the petitioner is as follows: Petitioner is the Managing Director of "Five Star Agro Food Products (P) Ltd." It is stated that for the last six months the factory did not function and there was a lock-out in 2005 and, therefore, the Company was unable to file Return in time for the assessment year 2004 - 2005. By Ext.P1, the third respondent assessed the Company. Against the assessment, the Company filed Appeal as Ext.P2 and the matter is pending. In the meantime, the petitioner is faced with Ext.P3 notice under the Revenue Recovery Act. According to the petitioner, the complaint is that instead of proceeding against the assets of the Company, proceedings are initiated against the properties of the petitioner. 2. I heard the learned counsel for the petitioner and also the learned Government Pleader. Counsel for petitioner points WPC. 21205/08 Y 2 out Section 26C of the KGST Act and submits that only if the amount cannot be recovered from the assets of the Company that the Directors can be proceeded against. Learned Government Pleader submits that the amount due as per Ext.P3 revenue recovery notice, the recovery is in respect of Rs.68,846/= towards tax and the further amount due is Rs.2,66,355/= which is towards margin money. After having heard the parties, the Writ Petition is disposed of as follows: It is directed that the proceedings against the petitioner in respect of the sales tax amount due can be proceeded with only if it is found that the liability cannot be recovered from the assets of the Company, M/s. Five Star Agro Food Product (P) Ltd. within the meaning of Section 26C of the KGST Act. In regard to the amount due as margin money also, it is ordered that the proceedings shall be taken against the assets of the Company and if it is found that the said amount cannot be recovered from the assets of the Company, proceedings can be taken against the petitioner, provided that such proceedings can be taken only in WPC. 21205/08 Y 3 accordance with law. The attachment against the properties of the petitioner will continue. Ext.P3 sale notice will not be implemented. Sd/= K. M. JOSEPH, JUDGE kbk. // True Copy// PS to Judge