IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE C.K.ABDUL REHIM MONDAY, THE 24TH JANUARY 2011 / 4TH MAGHA 1932 WP(C).No. 1197 of 2011(Y) --------------------------------------- PETITIONER(S): ------------------------ M.J.THOMAS, SON AND LEGAL HEIR OF A.P. CHINNAMMA, PROP. M/S. JOSE DAVIS AND CO., MARKET ROAD, OLLUR, THRISSUR. BY ADVS. SRI.E.P.GOVINDAN, SMT. DEEPA.G. RESPONDENT(S): --------------------------- 1. THE ASSISTANT COMMISSIONER (ASSMT.) SPECIAL CIRCLE, COMMERCIAL TAXES, THRISSUR - 680 001. 2. THE DEPUTY COMMISSIONER (APPEALS), COMMERCIAL TAXES, THRISSUR - 682 015. 3. THE DEPUTY TAHSILDAR (RR), THRISSUR TALUK, THRISSUR - 680 001. 4. THE STATE OF KERALA, REPRESENTED BY THE SECRETARY, TAXES DEPARTMENT, GOVERNMENT SECRETARIAT, TRIVANDRUM - 695 001. R1 TO R4 BY SR. GOVERNMENT PLEADER SRI. C.K.GOVINDAN THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 24/01/2011,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Kss C.K.ABDUL REHIM, J. ------------------------------------------- W.P.(C).No.1197 of 2011 ------------------------------------------- Dated this the 24th day of January, 2011 J U D G M E N T ---------------------- Petitioner's mother, Smt.A.P. Chinnamma, who died in September 2005, was a registered dealer running a proprietary concern, namely, M/s. Jose Davis & Co. Ext.P2 is the order of assessment finalised against the said dealer with respect to the year 2005-'06 under the CST Act. Aggrieved by Ext.P2 the petitioner had preferred Ext.P3 appeal, when coercive steps of recovery was initiated under Ext.P1 demand notice. Along with appeal, the petitioner had also filed Ext.P4 stay petition as well as Ext.P5 early hearing petition. It is stated that the appeal and accompanying applications are pending consideration before the 2nd respondent, who is the appellate authority. 2. Contention of the petitioner is that his late mother Smt.Chinnamma was running the business as a proprietary concern and the registration in question will become automatically cancelled by virtue of death of Smt. Chinnamma. It is contended that Ext.P2 order of assessment was issued after the death of Smt.Chinnamma. Ext.P2 being an order issued against a dead person is a non est under law, is the contention. W.P.(C).1197/11 -2- It is the further contention that proper remedy ought to have been adopted is to issue notice to all the legal heirs and to finalise the assessment afresh. The assessment and recovery steps initiated without recourse to such a procedure is totally unsustainable, is the contention. 3. Since the matter is now pending consideration before the appellate authority, I am not proposing to arrive at any conclusion regarding the above said contentions. Learned Government Pleader appearing on behalf of respondents submitted that late Smt. Chinnamma was not a registered dealer, but M/s. Jose Davis & Co. is the registered dealer. It is the further contention that since the firm is continuing business, Ext.P2 assessment finalised is perfectly valid. It is also stated that such assessment was completed after issuing notice to the firm. 4. However, it is a matter which need be considered by the appellate authority. Considering the facts and circumstances, I am of the view that the writ petition can be disposed of directing the appellate authority to dispose of the appeal within a time frame. 5. Accordingly the writ petition is disposed of directing the 2nd respondent to consider and dispose of Ext.P3 appeal as early as possible, after affording an opportunity of hearing to the W.P.(C).1197/11 -3- petitioner, at any rate within a period of two months from the date of receipt of a copy of this judgment. 6. Till such time the appeal is disposed of recovery of amounts covered under Ext.P2, which is initiated on the basis of Ext.P1 notice, shall be kept in abeyance, subject to condition of the petitioner furnishing Security Bond without sureties for the entire amount due, within a period of two weeks from the date of receipt of a copy of this judgment. C.K.ABDUL REHIM, JUDGE. okb