IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.R.RAMACHANDRA MENON FRIDAY, THE 7TH AUGUST 2009 / 16TH SRAVANA 1931 RP.No. 687 of 2009(H) ----------------------------------- AGAINST THE JUDGEMENT/ORDER IN WPC.17917/2009 Dated 30/06/2009 .................... REVIEW PETITIONER(S): PETITIONER IN THE WPC ------------------------------------- V.MOHAMMED NIZABUDHEEN,S/O.N.A.UMMER, NAMMANDA HOUSE, CHERUVAYOOR (VIA)VAZHAKKAD,MALAPPURAM DISTRICT. REPRESENTED BY ITS POWER OF ATTORNEY HOLDER M.HABEEB RAHMAN. BY ADVS.MR.G.HARIHARAN MR.PRAVEEN.H. RESPONDENT(S): RESPONDENTS -------------------------- 1. COMMISSIONER OF COMMERCIAL TAXES, THIRUVANANTHAPURAM. 2. INTELLIGENCE OFFICER(IB)II,OFFICE OF THE DEPARTMENT OF COMMERCIAL TAXES,SALES TAX COMPLEX, JAWAHAR NAGAR COLONY,ERANHIPPALAM,KOZHIKODE. 3. P.MOHAMMED,S/O.ALAVI HAJI,AGED 60 YEARS, PARAMBAN HOUS,EDAVANNA.P.O,MALAPPURAM DISTRICT- 676541.ERANAD TALUK. 4. P.SIDHIQUE PANDIKASALA,S/O.NOORDEEN, AGED 34 YEARS,NOORIYA MANZIL,FEROKEPETTA,KOZHIKODE DISTRICT-673631. 5. ABINAYAA IMPORTS AND EXPORTS,NO.26 -9, KAMARAJAR NAGAR, 3RD MILE,THOOTHUKUDI-628008, TAMILNADU. 6. TAHSILDAR,ERANAD,MANJERI. 7. VILLAGE OFFICER,VAZHAKKAD, MALAPPURAM DISTRICT. R.P. 687/2009 8. P.SREEDHARAN, PROPRIETOR EASTERN TRADERS, KURUVANGAD (VIA) KOYILANDY, KOZHIKODE DIST. 9. COMMERCIAL TAXES OFFICER, KOYILANDY, KOZHIKODE DISTRICT. BY GOVT. PLEADER MR.C.K.GOVINDAN THIS REVIEW PETITION HAVING COME UP FOR ADMISSION ON 07/08/2009, ALONG WITH WPC. NO.17917 OF 2009 THE COURT ON THE SAME DAY PASSED THE FOLLOWING: P.R. RAMACHANDRA MENON, J. ........................................................................ R.P. No. 687 OF 2009 IN WP.(C) 17917 OF 2009 & W.P.(C) 17917 OF 2009 ......................................................................... Dated this the 7th August, 2009 O R D E R The Writ Petitioner, who is one of the partners of the 5th respondent-Firm, (of which, the respondents No. 3 and 4 are the other partners) has approached this Court challenging Exts. P7 and P8 revenue recovery proceedings initiated at the instance of the 9th respondent (who is stated as having no connection with the petitioner at all); simultaneously seeking for a direction to consider Ext.P6 petition for early hearing of the Revision Petition, stated as filed before the first respondent - Commissioner. 2. When the matter came up for admission before this Court, the coercive proceedings were intercepted on condition that the petitioner remitted a sum of Rs.Two lakhs within two weeks. However, the petitioner, instead of remitting the said R.P. No. 687 OF 2009 IN WP.(C) 17917 OF 2009 & W.P.(C) 17917 OF 2009 2 amount, has chosen to approach this Court by filing the present Review Petition, also producing two assessment orders passed by the 9th respondent against the 8th respondent as Annexures2 and 3, pointing out that Exts. P7 and P8 revenue recovery proceedings are actually in respect of Annexures 2 and 3, as aforesaid and hence that the said coercive steps stated as being pursued against the petitioner in respect of the dues payable by the 8th respondent are not correct or sustainable. 3. The learned Government Pleader, with reference to the contents of the counter affidavit filed on behalf of the respondent Nos.2 and 9, submits that the proceedings taken by the 9th respondent against the 8th respondent as per Annexures 2 and 3 and the proceedings taken by the departmental authorities against the petitioner are entirely different. It is also asserted that Exts.P7 and P8 revenue recovery proceedings initiated against the petitioner are in respect of the amounts due towards the penalty imposed vide Ext.P2 order and inclusive of the protective assessment order passed by the R.P. No. 687 OF 2009 IN WP.(C) 17917 OF 2009 & W.P.(C) 17917 OF 2009 3 second respondent under the relevant provisions of law, when the 8th respondent denied the transaction (as having purchased Timber from the petitioner, stated as effected as per the records/Books of Accounts of the petitioner). The learned Government Pleader also submits that, all the files and proceedings forming the subject matter of Ext. P2 were also forwarded to the 9th respondent for completing the formalities and it was accordingly, Requisition bearing No.RRC.23/2008 dated 29.10.2008 was issued by the 9th respondent leading to Exts. P7 and P8 revenue recovery steps. This being the position, there is absolutely no merit or bonafides in the submission made from the part of the Writ petitioner/Review petitioner and that the prayers in the Writ Petition as well as in the Review Petition are not liable to be entertained, submits the learned Government Pleader. 4. It remains to be an undisputed fact that the petitioner sustained Ext. P2 penalty order imposed by the second respondent, which was sought to be challenged by filing a R.P. No. 687 OF 2009 IN WP.(C) 17917 OF 2009 & W.P.(C) 17917 OF 2009 4 revision petition before the Deputy Commissioner of Commercial Taxes, Kozhikode, before whom, he lost the battle. Met with the said circumstances, the petitioner preferred the second Revision before the first respondent and one of the prayers raised in the Writ Petition was for a direction to consider and pass appropriate orders on Ext. P6 petition filed before the first respondent for early hearing of the second Revision Petition. 5. The learned counsel for the petitioner conceded that no petition for stay has been preferred before the first respondent; simultaneously adding that it was only because of the reason that no revenue recovery proceedings were stated as being pursued against the petitioner at that point of time. 6. It is very much evident from Ext. P2 order passed by the second respondent that the said proceeding takes in, the 'penalty' as well as the 'tax amount' . Of course, there is a contention for the petitioner that the second respondent does not have any power, jurisdiction or competence to fix the tax, which has been rebutted from the part of the respondents in their R.P. No. 687 OF 2009 IN WP.(C) 17917 OF 2009 & W.P.(C) 17917 OF 2009 5 counter affidavit, referring to G.O. (MS)No. 158/2002/TD (SRO . 1046/2002 Dated 25.10.2002) asserting that the Intelligence Officer has all the powers of the assessing authority under the KGST Act and has jurisdiction throughout the State of Kerala. In any view of the matter, this aspect is also stated as the subject matter of consideration before the first respondent in the second Revision Petition stated as pending before him. This being the position, the liability of the petitioner to satisfy the amount covered by Ext.P2 will, of course, depend upon the outcome of the second Revision Petition; which however has not been sought to be stayed, by filing any petition. 7. To have a finality to the issue projected before this Court in the Writ Petition as well as in the Review Petition, the first respondent is directed to consider the Revision Petition filed by the petitioner as referred to in Ext. P6 and to finalise the same in accordance with law, after giving an opportunity of hearing to the petitioner, as expeditiously as possible and at any rate within two months from the date of receipt of a copy of the R.P. No. 687 OF 2009 IN WP.(C) 17917 OF 2009 & W.P.(C) 17917 OF 2009 6 judgment. It is also made clear that all coercive proceedings now stated as being pursued, pursuant to Exts. P7 and P8 shall be kept in abeyance on condition that the petitioner deposits a sum of Rs. Two lakhs as ordered by this Court vide interim order dated 30.06.2009 while admitting the Writ Petition. However, the time to effect the deposit, as above , is hereby enlarged and the petitioner shall effect the same within a further period of three weeks. Both the Writ Petition as well as the Review Petition are disposed of accordingly. P.R. RAMACHANDRA MENON, JUDGE. lk