IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE C.K.ABDUL REHIM TUESDAY, THE 15TH DECEMBER 2009 / 24TH AGRAHAYANA 1931 WP(C).No. 30244 of 2009(A) -------------------------- PETITIONER(S): --------------- 1. A.YOUNUS KUNJU, YOUNUS CASHEW INDUSTRIES, VADAKKEVILA P.O., KOLLAM-10. 2. FATHIMA MEMORIAL EDUCATIONAL TRUST VADAKKEVILA P.O., KOLLAM, REPRESENTED BY A.YOUNUS KUNJU ITS CHAIRMAN. BY ADVS. SRI.HARISANKAR V. MENON SMT.MEERA V.MENON RESPONDENT(S): --------------- 1. ASST.COMMISSIONER OF COMMERCIAL TAXES, SPECIAL CIRCLE, KOLLAM. 2. TAHSILDAR (REVENUE RECOVERY) TALUK OFFICE, KOLLAM. BY GOVERNMENT PLEADER SRI. C.K. GOVINDAN THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 15/12/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: shg/ C.K. ABDUL REHIM, J. - - - - - - - - - - - - - - - - - - - - - - - W.P.(C)No. 30244 of 2009 - - - - - - - - - - - - - - - - - - - - - - - Dated this the 15th day of December, 2009 J U D G M E N T 1. The 1st petitioner, who is a dealer in cashew having registration under the Kerala General Sales Tax Act, 1963 (KGST Act) and Central Sales Tax Act (CST Act), is in arrears of payment of tax with respect to various years staring from 1972-73 up to 2000-01. By virtue of Ext.P3 notice issued under Section 36 of the Kerala Revenue Recovery Act, various extents of properties belonging to the 1st petitioner was attached for realisation of a total amount of Rs.60,00,109/-. So also by virtue of Ext.P4 prohibitory order issued to the Sub Registrar and the Village Officer concerned, any further assignment in certain other properties belonging to the 1st petitioner is prohibited. 2. It is stated that the 1st petitioner had gifted some properties to the 2nd petitioner, which is a Trust, by virtue of Ext.P1 Gift Deed. The property so gifted is also coming W.P.(C)No. 30244 of 2009 -2- within the properties attached through Ext.P3. The 2nd petitioner Trust is stated to be a charitable trust engaged in educational activities. The 2nd petitioner trust has approached the Kerala University seeking affiliation of educational institution started in the property which is gifted by the 1st petitioner. By virtue of Ext.P2 letter the Registrar of the University of Kerala has requested the petitioner to submit the original revenue records with respect to the property wherein the engineering college is established. But since the attachment effected by virtue of Ext.P3 is continuing, the 2nd petitioner could not submit unencumbered title documents with respect to the property. 3. According to the 1st petitioner he had already applied for benefit under the Amnesty Scheme, in order to wipe out the arrears of sales tax. It is evident from Exts.P5 & P7 orders that the benefit was allowed to the petitioner and the petitioner was required to remit a total amount of Rs.13,80,524/- and 59,52,471/- respectively, in four (4) monthly installments. It is stated that the amount covered W.P.(C)No. 30244 of 2009 -3- under Ext.P5 has already cleared payment and two installments pertaining to Ext.P7 has also been paid. According to the 1st petitioner the property covered under Ext.P4, extending to 10.80 Ares comprised in survey Nos.71/2 & 71/3 of Kollam East Village, which is already under attachment, will fetch a market value of Rs.2,66,76,000/-. The property which is gifted to the 2nd petitioner is now in ownership and enjoyment of the Trust and the educational institution has already been established therein. Under the above circumstances the limited prayer of the petitioner is to release the property gifted to the 2nd petitioner in order to facilitate them to get affiliation from the University. 4. Consequent to an interim direction issued by this court, the 2nd respondent had produced a valuation report to this court, with respect to the properties under attachment as per Ext.P4 order. Those are properties other than the property gifted to the 2nd petitioner. The valuation report produced before this court revealed that those W.P.(C)No. 30244 of 2009 -4- properties is having a market value of Rs.4,89,41,582/-, whereas it is pointed out that the total balance outstanding by virtue of Exts.P5 & P7 orders will be around Rs.30 lakhs only. 5. Under the above circumstances, I am of the opinion that on a consideration of equity involved, the 2nd petitioner educational trust need be facilitated with an opportunity to get affiliation from the University, by releasing attachment over property. It is abundantly clear that, even assuming there occur any failure on the part of the 1st petitioner in remitting the amount under the Amnesty Scheme, the entire arrears as well protected by virtue of attachment subsisting in relation to other properties, considering its valuation. 6. Under the above circumstances the writ petition is disposed of directing the 2nd respondent to take necessary steps to release attachment of the property covered under Ext.P1 gift deed (covered by Document No.4389/2001 of SRO Eravipuram) on condition of the petitioner producing W.P.(C)No. 30244 of 2009 -5- proof for payment of tax so far made pursuant to Exts.P5 & P7 orders and also on producing proof regarding payment of balance installments through post dated cheques. 7. The needful in this regard shall be done at the earliest, at any rate within a period of two weeks from the date of production of such proof. C.K. ABDUL REHIM JUDGE shg/