IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.R.RAMACHANDRA MENON FRIDAY, THE 26TH NOVEMBER 2010 / 5TH AGRAHAYANA 1932 WP(C).No. 24120 of 2004(U) --------------------------------------- PETITIONER: ------------------- R. AJITH KUMAR, 10-D, TRAQUIL TOWERS, OPP.CIVIL STATION, KAKKANAD. BY ADVS. SRI.P.SANJAY, SMT.A.PARVATHI MENON. RESPONDENTS: ------------------------ 1. STATE OF KERALA, REPRESENTED BY ITS SECRETARY, DEPARTMENT OF TAXES, TRIVNADRUM. 2. THE SALES TAX OFFICER, SECOND CIRCLE, KALAMASSERY. 3. THE SALES TAX OFFICER (ENQUIRY), MATTANCHERY. 4. M/S. KONKA ELECTRONICS (INDIA) LTD., E-25, DEFENCE COLONY, NEW DELHI-110 024. 5. I C I C I BANK, M.G. ROAD, ERNAKULAM REPRESENTED BY ITS MANAGER. 6. THE TAHSILDAR (R.R.), TRIKKAKARA. R1 TO R3 & R6 BY GOVT. PLEADER SRI. K.P. PRADEEP. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 26/11/2010,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C). NO.24120/2004-U: APPENDIX PETITIONERS' EXHIBITS: EXT.P.1: COPY OF THE NOTICE NO. 23241551/2001-02 DTD. 21/01/04. EXT.P.2: COPY OF THE JUDGEMENT IN W.P.(C).6748/04 DTD. 27/02/04. EXT.P.3: COPY OF THE FIXED DEPOSIT RECEIPT DTD. 19/08/00. RESPONDENTS' EXHIBITS: NIL. //TRUE COPY// P.S. TO JUDGE. Prv. P.R. RAMACHANDRA MENON, J. .............................................................................. W.P.(C) No.24120 OF 2004 ......................................................................... Dated this the 26th November , 2010 J U D G M E N T The writ petitioner has approached this Court with the following prayers;' “i) To call for the records leading to Ext.P1; ii. To issue a writ of certiorari quashing ext.P1; iii. To issue a writ of prohibition or any other appropriate writ restraining the 6th respondent from proceeding against the petitioner and his assets under the Revenue Recovery Act. iv. Direct the respondents to first forfeit Ext.P3 and to proceed against the assets of the 4th respondent for the liability disclosed in Ext.P1 v. To declare that the petitioner is not liable to pay the amount shown in Ext.P1. AND vi. To pass any other appropriate order or direction as this Hon'ble Court may deem fit and proper. 2. The sequence of events as narrated in the Writ Petition shows that the petitioner was working as Branch Manager of the W.P.(C) No.24120 OF 2004 2 4th respondent Company dealing with some electronic items. When some electronic items were being transported in a truck it was intercepted on the way issuing notice under Section 29(A) of the KGST Act doubting evasion of tax referring to certain incriminating circumstances and thus demanding security deposit . It is stated that the petitioner as the Manager of the said company along with two other persons executed a bond so as to release the goods as well as the vehicle . It is also revealed that subsequent to the above steps, adjudication proceedings were finalised and the 4th respondent was imposed with a penalty, which was not satisfied, under which circumstance, the departmental authorities proceeded against the concerned persons who executed the bond including the petitioner. 3. It is the specific case of the petitioner that the 4th respondent company is not in existence now and that the petitioner has lost his job, who was working only as a paid employee of the company and that there was no personal liability under any circumstance. It is also brought to the notice of this Court that under similar circumstance, one of the sureties to the W.P.(C) No.24120 OF 2004 3 security bond had already approached this Court by filing W.P.(C) 6748 of 2004, which culminated in Ext.P2 judgment whereby the petitioner therein was permitted to take up the matter before the second respondent therein, however making it clear that the concerned respondent could very well proceed against the defaulter/4th respondent Company. The learned counsel for the petitioner also submits that though the present petitioner was included in the party array as 5th respondent in the aforesaid Writ Petition, he did not get any opportunity to submit the facts and figures in view of the fact that the said matter was disposed of at the admission stage itself. 4. Heard the learned Government Pleader as well. 5. When the matter was admitted on 13.08.2004, the coercive proceedings were intercepted. The said interim order was subsequently extended on 01.02.2005 observing as follows: “There will be a direction to the second respondent to withhold whatever balance is outstanding in the account of the fourth W.P.(C) No.24120 OF 2004 4 respondent company and give a statement to the petitioner about the balance outstanding in the account of the 4th respondent on production of a copy of this order for the petitioner to produce in this Court. Stay extended by one month. ” 6. Subsequent developments are not discernible from the materials on record, obviously for the reason that the respondents 1 to 3 have not filed any counter affidavit or statement as to the turn of events and this Court is not in a position to understand whether the entire liability or at least a portion of the liability is realised from the 4th respondent particularly in view of the direction given to the concerned respondent to withhold the balance amount outstanding in the account of the 4th respondent . 7. The learned Government Pleader however submits with reference to the instruction received that the petitioner had executed a bond while causing the materials to be released undertaking that the liability if at all any would be satisfied by he W.P.(C) No.24120 OF 2004 5 petitioner. Since no copy of the said bond is available before this Court and since no counter affidavit has been filed by the respondent, this Court is not in a position to appreciate the merits of the case involved . However, taking note of the fact that the persons similarly situated like the petitioner have already been given the benefit to the extent as provided in Ext.P2, this Court finds it fit and proper to take a similar view. Accordingly, the Writ Petition is disposed of directing the petitioner to file detailed objection, if any, within two weeks from the date of receipt of a copy of the judgment before the second respondent, on which event, the matter shall be caused to be considered and finalised by the said respondent, in accordance with the relevant provisions of law. Coercive proceedings, if any, shall be kept in abeyance till such time. P.R. RAMACHANDRA MENON, JUDGE. lk