IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.R.RAMAN WEDNESDAY, THE 19TH MARCH 2008 / 29TH PHALGUNA 1929 OP.No. 1527 of 2003(F) ----------------------------- PETITIONER: -------------------- T.A.MOHAMMAD KUNHI, DIRECTOR OF M/S.CHEMNAD ESSENTIAL OIL MFG. CO.(P) LTD. CHEMNAD, RESIDING AT SAMEERA MANCIL, KASARGOD. BY ADV. SRI.N.MURALEEDHARAN NAIR SRI.MANOJ KUMAR.M RESPONDENTS: ----------------------- 1. THE ASSISTANT COMMISSIONER (ASSESSMENT) COMMERCIAL TAXES, KANNUR. 2. THE TAHSILDAR (RR), KASARGOD. 3. STATE OF KERALA, REPRESENTED BY ITS CHIEF SECRETARY, SECRETARIAT, THIRUVANANTHAPURAM. BY GOVERNMENT PLEADER SRI.TEK CHAND THIS ORIGINAL PETITION HAVING BEEN FINALLY HEARD ON 19/03/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: OP. NO.1527/2003 ORDER ON CMP. NO.2727/2003 IN OP. NO.1527/2003 DISMISSED 19.03.2008 SD/- P.R.RAMAN, JUDGE APPENDIX PETITIONERS EXHIBITS EXT.P1:- COPY OF THE ASSESSMENT ORDER PASSED BY THE IST RESPONDENT FOR THE YEAR 1983-84 DT. 18.12.93. EXT.P2:- COPY OF THE REVISED ASSESSMENT ORDER PASSED BY THE IST RESPONDENT FOR THE YEAR 1991-92 DT. 25.1.01. EXT.P3:- COPY OF THE ATTACHMENT ORDER PASSED BY THE 2ND RESPONDENT . /TRUE COPY/ P.A. TO JUDGE tss P.R.RAMAN, J. ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ O.P.No.1527 of 2003-F ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ Dated this the 19th day of March, 2008 J U D G M E N T The petitioner was a Director of a private limited company. The said company was an assessee under the K.G.S.T Act, 1963. For the assessment years 1983-84 and 1991-92, assessments were completed. Exts.P1 and P2 are the assessment orders. Thereafter, Revenue Recovery Proceedings were initiated against the assessee company for recovery of the amount due. Pursuant to the service of the demand notices, an attachment order, vide Ext.P3, was issued on the immovable properties of the petitioner under the Revenue Recovery Act, which is impugned in this original petition. 2. No counter affidavit is filed. The Revenue Recovery Notice does not disclose any prior adjudication as to how the petitioner is made liable to pay any amount, if any, due from the company who alone is the assessee. According to the learned counsel appearing for the petitioner, he can only presume that steps by which present notice was issued is under Section 26C of the Companies Act and, if so, according to him, any action pursuant to introduction of Section 26C of the Companies Act should be O.P.No.1527/2003-F -: 2 :- taken only prospective and not for the period earlier to the introduction of Section 26C of the Companies Act. Section 26C of the Companies Act was introduced only in 1999. Amount, if any, due from the company is for the year 1991-92 and still 1983-84. According to him, Section 26C of the Companies Act has no application. I find it is not necessary to go to this question at this stage, since, nothing is discernible from the proceedings initiated against the petitioner. Therefore, the Revenue Recovery Proceedings can be initiated only if amounts are legally due and payable, before which a quantification of the amount and adjudication of the dispute is a condition precedent. Admittedly, when the petitioner is not an assessee, if the Assessing Officer proceeds to recover any amount from the petitioner, necessarily, he should be given a notice and afford an opportunity of being heard, pass orders considering his objection and, thereafter, subject to that order proceed to the recovery of the amount, in case it is not paid subject, of course, to the right of the petitioner to challenge the same in appropriate proceedings. That has not been done in this case. Accordingly, Ext.P3 is quashed. The original petition is allowed as above. P.R.RAMAN, Judge ms