IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HON'BLE THE ACTING CHIEF JUSTICE MR.J.B.KOSHY & THE HONOURABLE MR. JUSTICE V.GIRI MONDAY, THE 19TH JANUARY 2009 / 29TH POUSHA 1930 WA.No. 62 of 2009() --------------------------- AGAINST THE JUDGEMENT/ORDER IN OP.26536/2001 Dated 23/11/2007 .................... APPELLANT(S): PETITIONER ------------------------ A.M.SADEEQUE, XL/4456. ST.ALBERTS LANE, ERNAKULAM KOCHI-31, MANAGING DIRECTOR OF STAR MERCANTILE ENTERPRISES PRIVATE LIMITED, BASIN ROAD, KOCHI-31. BY ADV. SRI.N.MURALEEDHARAN NAIR SRI.V.K.SHAMUSUDHEEN RESPONDENT(S): RESPONDENTS ----------------------- 1. ASSISTANT COMMISSIONER (ASSMT) II SPECIAL CIRCLE, COMMERCIAL TAXES, ERNAKULAM. 2. DEPUTY TAHSILDAR (RR) TALUK OFFICE, ERNAKULAM. 3. STATE OF KERALA, REPRESENTED BY ITS CHIEF SECRETARY, SECRETARAIT, THIRUVANANTHAPURAM. BY GOVERNMENT PLEADER MOHAMMED RAFIQ THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 19/01/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: J.B. Koshy,Ag.C.J. & V. Giri, J. -------------------------------------- W.A. No. 62 of 2009 --------------------------------------- Dated this the 19th day of January, 2009 Judgment Koshy,Ag.C.J. Appellant/Petitioner is the Managing Director of a private limited company. The above private limited company was in arrears of sales-tax dues. That is not disputed. Ext.P2 recovery notice was issued. In Ext.P2, defaulter's name is shown as the company and it is addressed to the petitioner as he is the Managing Director of the company. The learned Judge after considering the decision of the Hon'ble Supreme Court in Commissioner of Income Tax v. Sree Meenakshi Mills Ltd and others (63 ITR 609) and McDowell and Co. Ltd. v. Commercial Tax Officer (154 ITR 148) held that even the liability due from the company can be recovered from the persons who were the beneficiaries of the company. The learned Judge also stated that the petitioner has not disclosed the shareholding pattern of the company. After the judgment, that is not disclosed even in writ appeal and it is purely a private limited company. Even though petitioner challenged the validity of section 26C of the Kerala General Sales Tax Act, the learned Judge found that even without W.A. No. 62/2009 2 reference to section 26C, recovery proceedings will lie. Apart from the above, petitioner obtained instalment facility from the Government, but, he did not pay the tax. Therefore, there is no reason to exercise the discretionary powers under the extra- ordinary jurisdiction of this court. The learned Judge further noticed that first the assets of the company should be proceeded with. In these circumstances, we fully agree with the learned single Judge and appeal is dismissed. J.B.Koshy Acting Chief Justice V. Giri Judge vaa