IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE C.N.RAMACHANDRAN NAIR FRIDAY, THE 8TH FEBRUARY 2008 / 19TH MAGHA 1929 WP(C).No. 32776 of 2005(B) -------------------------- PETITIONER: ------------ N.VIDHYADHARAN, S/O.NARAYANAN, PUTHENKATTIL, MAHADEVIKKADU MURI, KARTHIKAPPALLY VILLAGE, ALAPPUZHA DISTRICT. BY ADV. SRI.S.V.BALAKRISHNA IYER SRI.K.JAYAKUMAR SRI.P.B.KRISHNAN RESPONDENTS: ------------- 1. THE STATE OF KERALA, REPRESENTED BY THE SECRETARY, TAXES, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM. 2. THE COMMISSIONER OF COMMERCIAL TAXES, THIRUVANANTHAPURAM. 3. THE SALES TAX OFFICER, HARIPPAD. 4. THE DISTRICT COLLECTOR, ALAPPUZHA. 5. THE TAHSILDAR (RR), KARTHIKAPALLY TALUK OFFICE, HARIPPAD. 6. K.RAJAN, S/O.KUMARAN, VELUCHIRAYIL HOUSE, PALLIPADU MURI, THRIKKUNNAPPUZHA VILLAGE, ALAPPUZHA DISTRICT. 7. K.MOHANDAS, S/O.KUMARAN, KRISHNALAYATHIL, MAHADEVIKKADU MURI, KARTHIKAPPALLY VILLAGE, ALAPPUZHA DISTRICT. 8. A.SANTHOSHKUMAR, S/O.ANANDAN, VILAYIL PARAMBIL, KUMARAPURAM VILLAGE, ERICAVU MURI, ALAPPUZHA DISTRICT. R1 TO R5 BY G.P. SRI. K.P. PRADEEP R6 BY ADV. SRI.ARIKKAT VIJAYAN MENON SRI.HARISANKAR V. MENON SMT.MEERA V.MENON THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 08/02/2008, ALONG WITH WPC 31237/04 THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: 2 APPENDIX (WPC 32776/05) PETITIONER'S EXHIBITS: EXT.P1 DATED 18.3.1997, TRUE COPY OF THE DEED OF PARTNERSHIP OF THE FIRM RMS WINES EXT.P2 DATED 15.1.1999 TRUE COPY OF THE PROCEEDINGS OF THE THIRD RESPONDENT ASSESSING THE FIRM FOR THE YEAR 1997-98 EXT.P3 DATED 2.7.2001, TRUE COPY OF THE PLAINT IN OS NO. 204 OF 2001 ON THE FILE OF THE SUB COURT, MAVELIKKARA. EXT.P4 DATED 31.10.2002 TRUE COPY OF THE ORDER NO. 13192061/97-98 (REVISED) ISSUED BY THE THIRD RESPONDENT. EXT.P5 DATED 31.3.2003 TRUE COPY OF THE ORDER IN STA 209/2002 OF THE APPELLATE ASSISTANT COMMISSIONER, ALAPPUZHA. EXT.P6 DATED 21.2.2003, TRUE COPY OF THE REVISION FILED BEFORE 2ND RESPONDENT. EXT.P7 DATED 20.10.2005 TRUE COPY OF THE DEMAND ;CUM SALE NOTICE ISSUED BY FIFTH RESPONDENT. EXT.P8 DATED 29.10.2005 TRUE COPY OF THE REPRESENTATION MADE BY THE PETITIONER BEFORE THE THIRD RESPONDENT. RESPONDENTS' EXHIBITS: NIL. TRUE COPY P.S. TO JUDGE. C.N. RAMACHANDRAN NAIR, J. -------------------------------------------- W.P.C.NOs. 32776 /05 & 31237/04 -------------------------------------------- Dated this the 8th day of February, 2008 JUDGMENT Petitioners in both the Writ Petitions, who are partners of a firm which is in arrears of sales tax, are challenging recovery proceedings initiated against them personally. Since Section 21 of the KGST Act authorises recovery from partners of the defaulter-firm, the challenge against recovery proceedings is not maintainable. However, this Court vide Ext.P3 produced in WPC 31237 of 2004 directed recovery on equitable basis. The complaint of the petitioner in the said W.P. is that recovery is not pursued in terms of the direction contained in the judgment. It is further submitted that petitioner in WPC 31237 of 2004 paid Rs. 3 lakhs and the petitioner in WPC 32776of 2005 paid Rs. 1 lakh in terms of the interim orders dated 24.11.2005. Government Pleader submitted that on enquiry one partner is found to have no asset either movable or immovable. If any partner is left with no asset, then recovery has to be against other partners. However, other partners are free to identify the property of the partner who claims he has no asset 2 and if details are furnished recovery should be continued against such property also. Since petitioner in WPC 31237 of 2004 has paid Rs. 3 lakhs and since the balance amount is Rs. 4,87,706/- with interest thereon, these WPs are disposed of directing the petitioner in WPC 32776 of 2005 to deposit a further sum of Rs. 2 lakhs within two months from now. Tahsildar will proceed for recovery against all other partners on payment of the amount as stated above, in terms of Ext.P3 judgment produced in WPC 31237 of 2004. Recovery against the petitioners will be continued only if recovery is not possible from other partners. (C.N. RAMACHANDRAN NAIR) Judge kk 3