IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.P.BALACHANDRAN THURSDAY, THE 22ND MAY 2008 / 1ST JYAISHTA 1930 RSA.No. 296 of 2008 ----------------------- (A.S. No 348/2006 of the District Court, Ernakulam) (O.S. No 246/2007 of the Munsiff's Court,Perumbavoor) APPELLANT/APPELLANT/PLAINTIFF --------------------------------------- V.T.THOMAS, S/O.THOMAS, AGED 51 YEARS, ST.ANTONY'S WOOD INDUSTRIES, VATTALIL HOUSE, PULLUVAZHI KARA, RAYAMANGALAM VILLAGE, PERUMBAVOOR. BY ADV. SRI.ALEXANDER JOSEPH RESPONDENTS: RESPONDENTS/DEFENDANTS -------------------------------------------------- 1. STATE OF KERALA, REP. BY DISTRICT COLLECTOR, COLLECTORATE, KAKKANAD, ERNAKULAM. 2. THE TAHSILDAR, KUNNATHUNAD TALUK, PERUMBAVOOR. 3. THE SALES TAX OFFICER, IIND CIRCLE, SALES TAX OFFICE, PERUMBAVOOR. THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 22/05/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K.P. BALACHANDRAN, J. -------------------------------------------------------- R.S.A. No 296 of 2008 -------------------------------------------------------- Dated this the 22nd May 2008 JUDGMENT Appellant is the plaintiff in O.S. No 246 of 2007 on the file of the Munsiff's Court, Perumbavoor. He filed that suit for a decree of permanent prohibitory injunction restraining the respondents from proceeding with revenue recovery steps as against him for recovery of sales tax arrears. He is a timber merchant at Pulluvazhi and a registered dealer under the Kerala General Sales Tax Act. According to him, the third defendant Sales Tax Officer made several arbitrary and unrealistic assessments on sales turnover in his business and assessed exorbitant amounts as sales tax on him for the year 1984-85 and for the subsequent years; that the said assessment orders were challenged in appeals, that in the meanwhile second respondent initiated revenue recovery proceedings against him for recovery of amounts assessed by the third respondent; that all the appeals filed by him against the assessments made by the third respondent were allowed and the assessments made by the third respondent were set aside and no amount is due towards sales tax from him and that the demand made by the second respondent is fraudulent and therefore a decree of permanent prohibitory injunction has to be granted restraining the respondents from recovering Rs 73,954/- which represents the amount illegally claimed from him by way of sales tax arrears and also restraining the RSA 296/08 2 attachment and sale of the movable and immovable properties belonging to him. 2. The suit was resisted by the second defendant filing written statement on behalf of defendants 1 to 3. According to the respondents, the appellant is a defaulter of sales tax and revenue recovery proceedings were initiated for recovery of sales tax arrears and the suit filed challenging the revenue recovery proceedings is hit by Section 72 of the Kerala Revenue Recovery Act; that the appellant has approached the civil court without resorting to the alternate remedy provided under the Kerala General Sales Tax act and hence the suit is hit by Section 41 (h) of the Specific Relief Act; that an amount of Rs 73,958/- is due from the appellant as sales tax arrears and penalty and revenue recovery certificate for realisation of the said amounts is pending and the suit is hit also by Section 49 of the Kerala General Sales Tax Act. 3. The trial court considered the maintainability of the suit in view of Section 72 of the Kerala Revenue Recovery Act that a suit can be brought before a civil court in respect of any question covered by Section 72 of the Act only on the ground of fraud. The counsel for the appellant has placed before me a copy of the plaint and I had occasion to go through the averments in the plaint and I see absolutely no averment as regards the RSA 296/08 3 existence of any fraud. The case of the appellant is that the assessment made by the third respondent has been set aside in appeal by the Sales Tax Appellate Authority. There is absolutely no evidence adduced by the appellant to show that the assessment orders were set aside in appeal. No document is produced also along with the plaint and even the number of the tax appeals filed against the assessment orders passed by the third respondent are not mentioned. The suit has been filed without any document to substantiate the contentions advanced by the appellant. The suit is in effect one to restrain the recovery of sales tax arrears due from the appellant under the assessment orders passed by the third respondent. Hence in view of Section 49 of the Kerala General Sales Tax Act the suit is not maintainable as rightly found by the trial court. It is also seen that for similar relief O.S. No 121 of 1989 was filed by the appellant before the same trial court on an earlier occasion and that was abandoned. Counsel submits that the said suit was abandoned as the assessment orders were set aside in appeals. However, there is no evidence to substantiate that aspect. There is presumption also under Section 114 of the Evidence Act regarding correctness of official acts. If at all assessment orders were set aside, naturally the proceedings for recovery of arrears by the revenue authorities would have been recalled. No such thing was done in the instant case only RSA 296/08 4 for the reason that the assessment orders had become final. Appellant has approached the civil court with no document and making false allegations and the suit was rightly found by the trial court to be not maintainable. First appeal filed by the appellant challenging the order of the trial court on issue No. 1 holding that the suit is not maintainable and consequently dismissing the suit was upheld and the appeal was dismissed. There is absolutely no question of law and much less any substantial question of law to be considered by this court. In the circumstances, the R.S.A is devoid of merit and is dismissed in limine refusing admission. Sd/- K.P.BALACHANDRAN Judge 22/05/08 en Order on I.A 751 of 2008 ------------------------------- Dismissed. Id./- K.P. Balachandran, Judge 22/05/08 [true copy]